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Brief of Amicus Curiae Academic Authors and Legal Scholars in Support of Defendants Appellees and Affirmance, Nos. 12-14676-FF, 12-15147-FF (April 25, 2013)
Get PDFNarratives of the European Crisis and the Future of (Social) Europe
Get PDFThis article examines two distinct types of narratives prevalent in academic writing and popular press regarding the causes of the crisis in Europe. The first type, a morality tale, attributes the crisis to profligate southern states that refused to abide by the strictures of the Stability and Growth Pact. The second type is focused on the structural reasons for the crisis, emphasizing the nature of the European Union as a non-optimal currency area, and the euro as a factor in the creation of trade imbalances and competitiveness problems within the euro zone. Each type of narrative suggests a different type of solution. The morality tale tends to see austerity measures and stricter fiscal discipline as the solution, while the structural narratives suggest anything from banking, to fiscal, to full political union or, by contrast, breakup as the potential ways out. The article argues that European politicians have focused on the morality tale and this in turn makes the structural solutions required for the survival of the euro politically unworkable. The article further argues that the European Commission has used the crisis as evidence of the dire consequences following from lack of reforms. Instead of profligate citizens the Commission sees inefficient states that are potentially creating impediments to growth. Notably, the Commission’s vision of desirable reforms for the purposes of growth reach well into the basic structures of European welfare state, on social policy, pensions, and health care, but this time under the guise of a fiscally mandated adjustment that should be binding on Member State through the process of economic policy coordination
The Constitutional and Counterterrorism Implications of Targeted Killing : Hearing Before the S. Judiciary Subcomm. on the Constitution, Civil Rights, and Human Rights, 113th Cong., April 23, 2013 (Statement by Professor Rosa Brooks, Geo. U. L. Center)
Get PDFMr. Chairman, the mere mention of drones tends to arouse strong emotional reactions on both sides of the political spectrum, and last week\u27s tragic events in Boston have raised the temperature still further. Some demonize drones, denouncing them for causing civilian deaths or enabling long-distance, video game-like killing, even as they ignore the fact that the same (or worse) could equally be said of many other weapons delivery systems. Others glorify drones, viewing them as a low- or no-cost way to take out terrorists wherever they may be found, with little regard for broader questions of strategy or the rule of law
Make Me Walk, Make Me Talk, Do Whatever You Please: Barbie and Exceptions
Get PDFBarbie represents an aspiration to an ideal and also a never-ending mutability. Barbie is the perfect woman, and she is also grotesque, plasticized hyperreality, presenting a femininity exaggerated to the point of caricature. Barbie’s marketplace success, combined with (and likely related to) her overlapping and contradictory meanings, also allow her to embody some key exceptions to copyright and trademark law. Though Mattel’s lawsuits were not responsible for the initial recognition of those exceptions, they illuminate key principles and contrasts in American law. Mattel attempted to use both copyright and trademark to control the meaning of Barbie, reflecting a trend towards such overlapping claims. In order to ensure that their combined scope is no greater than the sum of their parts, both trademark and copyright defenses ought to be considered together. The Barbie cases highlight the problem that overlaps between the two regimes can challenge the very idea of IP boundaries, unless robust defenses exist against overclaiming
The Dormant Second Amendment: Exploring the Rise, Fall, and Potential Resurrection of Independent State Militias
Get PDFThe term “militia” is polarizing, misunderstood, misapplied, and generally difficult for modern Americans to digest. That is not surprising, given the depth and breadth of American militia history and militias’ substantial evolution over four centuries.
Historically, militia simply refers to a broad-based civic duty to protect one’s fellow citizens from internal and external dangers and is not limited to activities involving firearms. Reestablishing militia’s true meaning and purpose—and reinvigorating independent state militias in the United States to effect that purpose—has the potential to address states’ emerging financial and security gaps and to produce multiple other significant benefits, including recalibrating federalism. This article suggests a method for how best to reinvigorate independent state militias, addresses the major critique against doing so, and initiates a real discussion about the future of state militias—an issue conspicuously underdeveloped in scholarship today
Does Swiss Bank Secrecy Violate International Human Rights?
Get PDFProf. Stephen Cohen, whose academic specialty is taxation, also has an interest in international human rights and served as Deputy Assistant Secretary of State for Human Rights in the Carter administration. In this comment, Prof. Cohen asks whether states like Switzerland, which provide bank secrecy for the offshore accounts of wealthy citizens of developing countries, violate internationally recognized human rights. The United Nations Covenant on Economic, Social, and Cultural Rights explicitly recognizes rights to adequate food, clothing, housing, health care, clean water, sanitation, and education. Bank secrecy has a significant human rights impact if it deprives developing countries of tax revenues needed to meet basic rights guaranteed by the Covenant. The annual tax gap for developing countries caused by bank secrecy is estimated to range from over $100 billion to several times that amount. Thus, it seems indisputable that bank secrecy impedes the ability of developing countries to fulfill internationally recognized human rights
IPOs and the Slow Death of Section 5
Get PDFSince its enactment, Section 5 of the Securities Act of 1933 has restricted sales-based communications with investors, but that effort is nearly dead even with respect to the most sensitive of offerings, the IPO. Our paper traces that devolution, which began almost as soon as the ’33 Act came into existence, though the SEC’s 2005 deregulatory reforms and Congress’ intervention in the JOBS Act of 2012. We show how much of this related to an embrace of “book-building” as the industry’s preferred method of price discovery, which requires private two-way communications between underwriters and potential sophisticated investors. But book-building (and the predictable IPO underpricing that results) has a retail dimension as well, and we point to ways in which the otherwise sensible deregulation may enable an over-stimulation of retail investor demand. We then explore two main justifications that have been given for the aggressive deregulation. The first is that any loss in prophylactic protection can be made up for by the threat of liability, particularly with an enhanced Section 12(a)(2). We find this unpersuasive for a variety of reasons. The other—amply visible in the long history of Section 5—is a faith in the “filtration” process, that retail investors gain protection because of the availability of the preliminary prospectus during the waiting period, to those involved in the selling process if not the investors themselves. Putting aside the biased incentives that affect filtration, much of what is most important—and conveyed privately to the institutions in the course of book-building—is forward-looking information that probably need not appear in the formal disclosure, whether preliminary or final. None of this is an argument for returning to the old prophylactics of Section 5. But it is cause for the SEC and FINRA to pay close attention to the retail investor effects of the IPO selling practices, especially in the post-JOBS Act era
No Small Feat: Who Won the Health Care Case (and Why Did So Many Law Professors Miss the Boat)?
Get PDFIn this essay, prepared as the basis for the 2013 Dunwody Distinguished Lecture in Law at the Fredric G. Levin College of Law, University of Florida, I describe five aspects of the Supreme Court’s decision in NFIB v. Sebelius that are sometimes overlooked or misunderstood. (1) The Court held that imposing economic mandates on the people was unconstitutional under the Commerce and Necessary and Proper Clauses; (2) Whether viewed from a formalist or realist perspective, Chief Justice Roberts’ reasoning was the holding in the case; (3) The Court did not uphold the constitutionality of the individual insurance mandate under the tax power; (4) The newfound power to tax inactivity is far less dangerous than the commerce power that was advocated by the government and most law professors; and (5) the doctrine established by NFIB matters (to the extent that constitutional law doctrine ever matters). Finally, I turn my attention to the question of why so many law professors got this case so wrong. After providing a lengthy compendium of published law professor opinions about the case, the author suggests that most missed the boat because they have failed to appreciate the constitutional gestalt that informed the Rehnquist Court’s New Federalism, a gestalt that can now be seen to carry over to a majority of the Roberts Court
The Ethics of Lobbying Under the District of Columbia Rules of Professional Conduct
Get PDFThe District of Columbia is the epicenter of lobbying in the United States. With the presence of the Congress, the Executive Branch and its various Departments and independent agencies, few industries, trade associations or large businesses lack a Washington-based government relations arm. Law firms and lawyers fill in the gaps for those entities that lack a Washington presence or supplement in-house staffing with additional expertise and contacts.
Under these circumstances, it should come as no surprise that the bar authorities in the District of Columbia have examined the issue of lawyers and lobbying and implemented rules that differ from the ABA Model Rules and are unique, to our knowledge, in the United States.
Like other jurisdictions, various Committees of the Bar and the Court have issued opinions that have concluded that lobbying is not the practice of law and can be done outside of the law firms. Hence the rise of the ‘‘K Street’’ lobbying shops that can be and frequently are composed of and owned and managed by nonlawyers. Unlike other jurisdictions, however, the D.C. Bar has concluded that the basic rule for current client conflicts—that a lawyer cannot be directly adverse to a current client—does not apply in the lobbying context
Judgment Day for Fraud-on-the-Market?: Reflections on \u3ci\u3eAmgen\u3c/i\u3e and the Second Coming of \u3ci\u3eHalliburton\u3c/i\u3e
Get PDFIn November 2013, the Supreme Court granted certiorari in the Halliburton litigation to reconsider, and perhaps overrule, its seminal decision in Basic Inc. v. Levinson. Basic legitimated the fraud-on-the-market presumption of reliance, making securities class actions for claims of false corporate publicity viable, and such cases have become the central mechanisms for private securities fraud litigation. This move came after last Term’s Amgen decision, where four justices signaled their doubts about Basic. This essay looks at the connection between Amgen and the continuing viability of fraud-on-the-market litigation. How Halliburton comes out will likely depend on how the Court views the Private Securities Litigation Reform Act of 1995—was there an implicit Congressional endorsement of fraud-on-the-market as part of a broader political bargain to make such class actions harder (but not impossible) to bring? My essay considers that question along with others that are raised in the effort to overturn Basic