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Regulating Cutthroat Business
No full textThe production of meat is almost entirely controlled by a small group of multinational agribusinesses. These packers own everything from animal genetics to feed to wholesaling to slaughtering to butchering-leaving only the raising of the animals to nominally independent farmers, who are, in turn, controlled through one-sided contracts. Packers use this power both to push down costs and make raising and slaughtering animals more specialized and efficient and to extract more money from farmers, workers, retailers, consumers, and state and local governments. They also wield their resources to avoid accountability for the costs they impose on others and to shape the research and press coverage on their industry.
Taking on the power of meatpackers and its impacts on working conditions, prices, animals, rural communities, and the environment would require a comprehensive set of reforms. But a surprisingly large amount would be possible by revitalizing enforcement of a century-old statute that has largely lain dormant during the transformation of meat production. Congress passed the Packers and Stockyards Act of 1921 ( PSA ) in (belated) response to the first wave of integration and consolidation in meatpacking. By the 1950s, the PSA had become part of a quasi-sectoral regulatory regime. This Article narrates how that regime came to be and how it collapsed. It then synthesizes the criticisms of concentrated agribusiness that have resulted and explains several means by which the PSA (the rump of the old regime)-and its prohibition on unfair and unjustly discriminatory practices-could be used to redistribute power in the short term and begin to build toward a more comprehensive re-regulation
Evangelicals and Other Contemporary Protestant Denominations in the United States
No full texthttps://scholarship.law.ua.edu/fac_bookchapter/1078/thumbnail.jp
Waste, Property, and Useless Things
Full text linkHow should the law respond to intentionally useless objects that are constructed from scarce materials and thrust into an overcrowded world?
Approximately sixty million tons of electronic waste, or e-waste -for example, discarded iPhones, refrigerators, desktop computers -is produced each year. This annual pile of electronic rubbish represents sixty-two billion dollars\u27 worth of tangible raw materials (such as gold and other scarce metals) that has been rendered useless. In addition to wasting raw materials, e-waste clogs our landfills, poisons the groundwater, and taxes our capacity to store it. Worst of all, much of this waste is intentionally created by electronics manufacturers through the profit-maximizing strategy of planned obsolescence. Planned obsolescence is a strategy by which manufacturers intentionally limit the utility of their products so that consumers are forced to discard them and buy new products.
Planned obsolescence creates intentionally useless objects and imposes significant social costs. While some of the costs of planned obsolescence are felt within the manufacturer-purchaser transaction ( a purchaser must consider whether a product will last long enough to justify its price), the most significant social costs of the strategy remain external to that transaction.
This Article offers three principal contributions. First, a normative thesis: More of the social costs of intentionally useless objects should be borne by the manufacturers that profit from the strategy. Second, a theoretical insight: Avoiding waste is a central commitment of property law. In fact, many of the rules of property law are rendered more coherent when they are understood as a series of instantiations of an antiwaste imperative. Often confused with an efficiency principle, property law\u27s antiwaste commitment best explains doctrinal choices that otherwise would seem inconsistent. Finally, a doctrinal analysis: The antiwaste imperative (when applied to the existing rules of property) disallows the conveyance of a fee simple in an intentionally useless object. Recognizing an antiwaste imperative in this context would mean that manufacturers can only convey a defeasible interest in the object, retaining a reversionary interest that serves to correct some of the negative externalities associated with the strategy of planned obsolescence
Judicial Economy in the Age of AI
No full textIndividuals do not vindicate the majority of their legal claims because of access to justice barriers. This entrenched state of affairs is now facing a disruption. Lawyers and non-lawyers alike are adopting artificial intelligence (AI) tools to perform legal tasks-tools that sharply reduce the costs of generating legal materials. There is finally hope that AI might allow many more to access justice.
Paradoxically, what we gain in access to justice we might lose in the delivery of justice. The problem is not that AI tools are ineffective. Indeed, they are even more effective than most realize-affecting every stage of the naming, blaming, and claiming process. The problem is that this change necessarily increases the volume and verbosity of the caseload thus threatening judicial economy; the balance of scarce judicial resources in relation to shifts in demand for legal services.
Historically, judges and legislatures have often met challenges to judicial economy by adjusting legal thermostats : ad-hoc adaptations to procedural rules and even substantive doctrines meant to curb the flow of litigation. But these adaptations invariably imply the shrinking of substantive rights. We run the risk, then, that litigants who finally gain access to justice will find narrow rights and stringent administrative procedures. To avoid this trajectory, I advocate a proactive framework of AI integration. Instead of fighting a losing battle against the symptoms of AI adoption by litigants, the legal system should integrate AI tools to enhance and scale up the legal process itself By thoughtfully and carefully incorporating these tools, we can ensure that we reap the fruits of greater access to justice, even in the face of a rapidly expanding caseload
Remarks Following the Judge Frank M. Johnson, Jr. Memorial Lecture in Constitutional Rights and Liberties by the Honorable Judge Michelle Childs
Full text linkEconomic Nationalism as the Fourth Era of International Trade Law
No full textThis article contextualizes and explains, from both theoretical and practical perspectives, some of the most recent and impactful changes to international trade law development in critical and emerging technology areas. It begins by describing developments in international trade law in the 20th and 21st centuries through the identification of four eras of that development: 1) pre-war protectionism (1921-1934); 2) post-war multilateralism (1947-2000); regionalism (2001-2016); and finally, post-multilateral economic nationalism (2017-present). It then focuses on this fourth era, which has been marked by unprecedented uses of unilateral regulatory barriers to trade including discriminatory tariffs, anti-dumping and countervailing duty impositions, export controls, sanctions, investment restrictions, and industry-specific subsidies, imposed by multiple countries, and led by the three largest economies (the US, China, and the EU), all in a significant deviation from the trade law and policy of these countries in previous eras. Understanding this turn to economic nationalism, as manifest in the current era of trade law development, is key to understanding current dynamics in global trade law and policy, particularly in critical and emerging technology areas such as artificial intelligence, microcomputing, quantum computing, neurotechnology, robotics, and biotechnology
Unfairness, Reconstructed
Full text linkA paradigm shift is afoot at major federal consumer protection agencies. For four decades, a bipartisan bloc of bureaucrats has seen the purpose of consumer protection as promoting informed consumer choice or consumer sovereignty. The idea was that informed consumers in competitive markets would protect themselves by choosing among sellers. Ensuring access to information would then shore up markets\u27 self-correcting tendencies without requiring moral judgment. In the past few years, by contrast, regulators have prioritized sector-wide regulation, enforcement sweeps, and strategic cases against market leaders. They have justified their actions not ( exclusively) in terms of informed choice or efficiency but in terms of values like protecting the vulnerable, preventing harassment, preserving privacy, and correcting for unjust inequalities.
Focusing doctrinally on uses of the unfair-practices authority shared by several agencies, this Article situates the shift both historically and theoretically. Historically, it argues that consumer sovereignty lost ground after the global financial crisis of 2007 and controversies over Big Tech. Theoretically, it argues that the consumer sovereignty framework relied on a too simple model of markets as deviations from perfect competition that needed only better information to get back in line and that the paradigm emerging in its place is properly committed to correcting for power asymmetries in irredeemably imperfect markets. I call the new paradigm an antidomination framework and defend it
Nuclear Free Zones
No full textThis Encyclopedia examines modern polar law and the specific legal regimes applicable in the Antarctic and the Arctic. It outlines related areas of international law, including law of the sea and environmental law, providing an invaluable overview and encouraging further research. Analyzing a breadth of topics, including biodiversity, marine protected areas and maritime zones, the Encyclopedia reflects increased global attention on the polar regions, their resources, environment, and governance.https://scholarship.law.ua.edu/fac_bookchapter/1077/thumbnail.jp
Scope-of-Practice Laws and the Practice Patterns of Nurse Practitioners and Physician Assistants
No full textI evaluate whether nurse practitioners (NPs) and physician assistants (PAs) change how they practice when states relax the scope-of-practice laws governing these professions. I find little evidence that NPs or PAs begin providing specialty services following relaxation. Some evidence suggests that NPs specialize more in rural areas following the relaxation of scope-of-practice laws, but no indication that they do so generally. Overall, the evidence developed here suggests that NPs and PAs do not change how they care for patients following the relaxation of scope-of-practice laws, undermining patient safety arguments along these lines
A Constitutional False Claims Act
Full text linkThe False Claims Act (FCA) represents one of the most important sources, if not the most important source, of liability in the healthcare system and other industries that routinely provide goods and services to the federal government. Originally designed to police fraud during the Civil War, the FCA has become a general statute to enforce many other complex legal schemes. Because failure to comply with complicated statutes and regulations can lead to a reimbursement claim being defined as false under the FCA, the FCA serves as a blunt instrument to cudgel those who fail to comply with the minutiae of federal regulatory schemes. And because the FCA provides for treble damages and a civil monetary penalty of nearly 1.3 billion per year. In some years, total FCA liability sometimes exceeds and is often in the same general range of total medical malpractice liability as well as total blockbuster punitive damages awards, which includes punitive awards of $100 million or more across all types of cases.
Based on the size and nature of liability under the FCA, this Article offers a new path to restraining these large awards under the Excessive Fines and Due Process Clauses. By carefully separating the compensatory and punitive aspects of FCA liability, this Article demonstrates the conditions under which the Excessive Fines and Due Process Clauses must apply to sanctions and damages under the FCA. Having done so, it provides specific recommendations on how to vindicate the underlying goals of both these constitutional clauses and ensure that defendants have adequate protection from extreme liability based on byzantine regulatory schemes