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Brief of Amicus Curiae, In re Opinions & Orders of this Court Addressing Bulk Collection of Data Under the Foreign Intelligence Surveillance Act, No. Misc. 13-08 (FISA Ct. June 13, 2018)
Get PDFUnder separation of powers doctrine, Congress lacks the authority to pass statutes to grant, or deny, the FISC jurisdiction over its opinions. All three branches agree that FISC is an Article III court. Constitutional courts are vested with “the judicial power” of the United States, which is insulated from the other two branches. It includes the power to issue opinions disposing of cases. If the other branches could strip the courts of authority over their judgments, they would be able to manipulate the law, undermining the protections for judicial independence. The “least dangerous branch” would lose all power. All it has is its judgments on matters of law.
In 2007 this Court correctly held that it has inherent authority over its own records. In re Motion for Release of Court Records, 526 F. Supp. 2d 484, 486-87 (FISA Ct. 2007). Congress has broad authority to set the court’s subject matter jurisdiction. While specialized, FISC is an Article III court. Article III courts have essential inherent powers that stem from their responsibility to administer justice. Hundreds of cases recognize such authorities. See App. B 52-70. To the extent that inherent powers may be merely useful or beneficial, courts can take the initiative but then must give way to legislative direction. Insofar as inherent powers are essential or necessary to the execution of core judicial power, then Congress cannot interfere. ACLU v. Holder, 673 F.3d 245, 255-56 (4th Cir. 2011); In re Stone, 986 F.2d 898, 901-902 (5th Cir. 1993); Eash v. Riggins Trucking Inc., 757 F.2d 557, 562-63 (3d Cir. 1985) (en banc). Issuance of opinions is a core judicial power. Control over them is an essential inherent authority. Article III courts thus have authority over their own records. Nixon v. Warner Commc’ns Inc., 435 U.S. 589, 598 (1978). Courts routinely exercise jurisdiction over third party requests. They continue to exercise this authority, without any statutory authorization, even decades after the underlying action ends. See, e.g., United States v. Bus. of Custer Battlefield Museum & Stores, 658 F.3d 1188, 1192-96 (9th Cir. 2011); Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1310-1313 (11th Cir. 2001); In re Petition of American Historical Association, 49 F.Supp.2d 274, 295 (1999). The court in which the matter first occurred exercises jurisdiction.
The FISC has a critical role to play in determining which parts of its opinions should be withheld from the public. The court is not unique in dealing with classified matters. Article III courts confront, scrutinize and reject Executive Branch claims. See App. C 76-96. To the extent that the executive attempts to masque matters of law, it grossly overreaches. For matters of fact, the FISC should apply the test used by other Article III courts, taking into account reasonableness, good faith, specificity, and plausibility
Vertical Mergers and the MFN Thicket in Television
Get PDFIncreasingly, cable and satellite TV services (known as “MVPDs”) seek to acquire upstream programming creators, as illustrated by AT&T’s recent merger with Time-Warner. At the same time, the pay-TV industry is rife with “most-favored nation” (MFN) agreements, which can sharply constrict the competitive process. The most problematic variety, so-called “unconditional” MFNs, raise serious antitrust concerns, as they may forestall effective entry by new streaming-based platforms; penalize pro-competitive deviations from the status quo; and facilitate de facto coordination among integrated MVPDs.While vertical mergers in the industry have received significant antitrust attention, the MFN concerns are interrelated. Problematic MFNs may naturally induce a double marginalization problem, even if the parties are otherwise capable of contracting around it. This creates a strong motivation for integration, but it also raises a question as to whether a merger is the only way to avoid double marginalization. Further, MFNs might compel a problematic form of reciprocal dealing that generates de facto price fixing between integrated rivals. Consequently, the industry’s trend toward integration may trigger other kinds of anti-competitive conduct
\u3cem\u3eCaremark\u3c/em\u3e and Compliance: A Twenty Year Lookback
Get PDFThe Delaware Chancery Court’s decision in In re Caremark was and is a landmark decision. This brief Commentary takes a look back at Caremark on three issues that pertain to its contemporary relevance inside the corporate boardroom: (1) framing the cost-benefit assessment on the question of how much to spend on compliance; (2) how and when to force certain compliance matters to real-time board-level attention; and (3) using selection, promotion, and compensation decisions to influence the culture and risk-taking “temperature” of the firm
User Participation in Value Creation
Get PDFThis article examines HM Treasury’s proposal to account for the active participation of users in value creation in certain digital platforms. The first key question is whether there is any reason to believe, as HM Treasury suggests, that users only meaningfully or actively contribute to value creation in the context of certain digital platforms. The article accordingly explores the factors HM Treasury sets out for the attribution of income to active user participation, including features such as network effects, multisided business models, and a lack of physical presence in the jurisdiction of the user. It concludes that if a user participation concept were adopted into international tax norms, it is unlikely to be limited to digital businesses or to the business models particularly highlighted in the proposal issued by HM Treasury. The analysis proceeds by considering the factors set out by HM Treasury for the attribution of income to active user participation in the context of pharmaceuticals and biologics, the financial sector, and the “internet of things”. For example, the article concludes that under HM Treasury’s user participation theory, returns from certain London-based financial intermediation businesses would need to be reallocated to other jurisdictions. Moreover, as the internet of things develops, one would expect the range of business affected by the active user participation concept to constantly expand
Cross-Subsidies: Government\u27s Hidden Pocketbook
Get PDFGovernments can use regulation to pay for public goods out of the pockets of consumers rather than taxpayers. For example, the Affordable Care Act (ACA) underwrites care for women and the infirm through higher insurance premium payments by healthy men. Building on a classic article from Richard Posner, we show that these “cross- subsidies” between consumers are a common feature of modern law, ranging from telecommunications to intellectual property to employee benefits.
Critics of the ACA, and even some of its supporters, argue that taxes would be a better choice. Taxes are said to be more transparent and to fit better with the recommendations of public finance economics. We show how these same arguments can be extended to many other contemporary cross-subsidies.
We also argue, however, that the critics may well be wrong. Drawing on recent theoretical and empirical advances, we show that cross-subsidies can be more efficient than taxes, especially when they are used to redistribute wealth on grounds other than income, such as the ACA’s transfer from men to women. We then apply our analysis to several key contemporary cross-subsidies, including personal injury law, patents, class action lawsuits, paid family leave, and, of course, the ACA
“Encroachments and Oppressions”: The Corporatization of Procedure and the Decline of Rule of Law
Get PDFThis Article begins by providing a brief account of the corporatization of procedure through judicial decision-making and noting some of the detrimental effects it has had on the preservation of rule of law and access to justice. Part II goes on to explore how the judiciary does not retain full control over procedure and how corporate entities have little care for whether a procedural reform simply cuts back at litigation or goes further and cuts back at judicial power and the judicial role itself. To illustrate these points, Part II examines the most recent attempt at procedural reform by corporate entities-the proposed Fairness in Class Action Litigation Act (FICALA). The most dramatic procedural changes in FICALA involve multidistrict litigation (MDL). These changes would cut back significantly at judicial power and discretion as well as the role of the judiciary in preserving the rule of law. Part III explores one of the implications of having two political branches and one nonpolitical branch of government-namely, that moneyed corporate interests effectively get two bites at the procedural apple. This state of affairs raises a number of fundamental questions, including. ones regarding the appropriate nature and scope of legislative and judicial power over procedure. Part III grapples with those questions
The Lessons of TPP and the Future of Labor Chapters in Trade Agreements
Get PDFThe agenda to link labor standards to trade agreements, in the hopes of improving working conditions in developing countries and preventing unfair labor competition for workers in rich countries, reached its culmination in TPP. Beginning with NAFTA and over a span of twenty-five years, labor standards became fully included in trade agreements and their violation subject to trade sanctions as means of enforcement. Thus, proponents of TPP offered it as the “gold standard” of globalization. This chapter argues that the debate about TPP, and the US labor movement’s opposition to it, made clear that this was not a story of success but of disenchantment. Unions in the US criticized TPP’s labor chapter for not going far enough, substantially and procedurally. But they also turned the focus to other chapters of TPP that may be just as or more important to workers in the US than the labor chapter: investment, rules of origin, procurement and currency manipulation. These areas have become the new frontier for labor advocates in trade agreements and they highlight the need to rebalance the treatment of capital and labor.
The chapter argues that a significant, though overlooked achievement of TPP, was to encourage several TPP parties to enact domestic labor reforms using labor side agreements and US pressure. More than any ideal labor chapter, it was these domestic reforms that held the most promise for improving working conditions in Vietnam and Mexico. The US withdrawal of TPP has set those reforms back. Opposition to TPP has also made clear that the expected losses from trade in the form of job loss and wage decline will not be made palatable in the absence of effective safety nets and compensatory mechanisms at the domestic level. In fact, international trade reputation will continue to suffer and opposition to it harden without them. To the extent that the debate about TPP was a referendum about liberal globalization as we know it, opposition to TPP in the US has given a resounding no. A pressing question is whether there is an alternative to the nationalist retrenchment embraced by the Trump administration. The revival of TPP without the US, unfortunately, does not seem to chart a different path
Cities, Government, Law, and Civil Society
Get PDFThis Article develops a first iteration of a locality-centered account of civil society and the role for government and law within it. I examine a particular municipality—the City of Pittsburgh—to provide a concrete example from which to generate ideas and judgments about the terrain and content of this localist account. While it may seem startling to approach the large goal of providing a generalizable account of civil society and municipal agency from a review of one U.S. city, I believe that doing so keeps the account grounded in particularities that highlight the very concrete ways in which civil society both manifests in, and can be supported by, a city. As more cities and other considerations are brought to bear on my account, I expect revisions to be in order. While I hope the account I produce can be serviceable for cities outside of the United States, my own ambition is to identify ideals suitable to cities within it. This is partly because my own expertise is in U.S. law, but also because I believe any ac count of cities, civil society, and law must relate to actual settings. U.S. cities share enough historical and legal context to answer to a general account. I leave to others, in their own application of reflective equilibrium, the question of whether the lessons I draw have implications for other cities in other places, with different histories and different laws
Controlling Agencies through the President’s Budget Process
Get PDFIt is obvious that the federal budget is central to the functioning of the administrative state. But a critical element about the federal budget is often missing from analyses of both the budget and the administrative state more generally: the way the President’s budget process—the year-round, continuous process of developing the new budget while executing the last one—provides a major source of control over agency policy choices, regardless of whether or how much Congress eventually appropriates at all. Scholars, practitioners, and observers of the administrative state ought to acknowledge this reality and consider its implications
Tapping the Power of Soda Taxes: A Call for Multidisciplinary Research and Broad-Based Advocacy Coalitions – A Response to the Recent Commentaries
Get PDFIn comments on our recent editorial, Le Bodo and De Wals and Baker et al provide compelling reflections on the need for further research into the policy processes and societal conditions conducive to sustainable soda taxes. This response is a call to action for increased multidisciplinary research and broad-based advocacy coalitions to expand the use and the effectiveness of soda taxes to promote the public’s health. In particular, we highlight the need for research relevant to low- and middle-income countries (LMICs) and emerging efforts to incorporate the voices and experiences of people living with non-communicable diseases (NCDs) into the development of policy responses