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Quiescent Sovereignty of U.S. Territories
Get PDFUnder modern democratic theory, the font of sovereignty springs from the people; however, traces of its past as a power emanating from the Crown continue to haunt the domestic and international status of sub-sovereign legal entities such as U.S. Territories. Quiescent sovereignty describes that which is possessed by the people of the Territories; a sovereignty that is theirs, but that is wielded on their behalf by the federal government. Although fiduciary responsibilities attach to this arrangement, cycles of attention/neglect are the modus vivendi. Bilateral relationships between the Territories and the federal government are varied, but such differences should not impact their voices in Congress. Institutional adjustments to provide more impetus to Territorial issues are readily possible. Just as the European Union came to realize the importance of sub-national input at the federal level by creating the European Union’s Committee of the Regions, so too should the U.S. House of Representatives create a Permanent Select Committee on Territorial Affairs chaired by a Territorial Delegate
Power to the Player: Freedom of Speech, the Right to Protest, and Student-Athlete Claims Against the NCAA
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Are We Dropping the Crystal Ball? Understanding Nascent & Potential Competition in Antitrust
Get PDFNascent and potential competitors can represent a vital source of innovation and dynamic growth for an industry and, in the process, can discipline the exercise of market power from incumbents. Yet are those benefits extinguished before they can fully ignite when powerful incumbents acquire these nascent and potential competitors? Moreover, how does the acquisition of these competitors fit into the larger antitrust framework? This Article offers a number of propositions to address these concerns and questions in regard to competition that has not been fully realized. First, this Article offers a clear legal and analytical delineation between the doctrines of nascent and potential competition—as there has recently been a degree of “semantic satiation” between these two concepts. Second, some have argued that the acquisition of nascent competitors should be adjudicated using legal standards developed under the Sherman Act, § 2, which covers monopolization, rather than under the traditional Clayton Act, § 7, which governs mergers and acquisitions. Yet the counterfactual exercise is fundamentally different between ex ante merger evaluations (§ 7) and ex post monopolization claims (§ 2). Consequently, based on this fact alone, courts should be cautious to adopt § 2 approaches to § 7 issues. Third, when valuating the wider set of proposals to address the nascent and potential competition problem, which the Article comments on, we must ask whether there is a problem in the first place. To that end, this Article examines a number of recent merger retrospectives. Finally, while using the past to predict the future can be a difficult and uncertain exercise even within mature markets, these hinderances can be overstated. Economic tools are available to frame our approach, and agencies and courts should focus particularly on whether the characteristics and nature of the acquired nascent competitor are sufficiently differentiated from the remaining competitors to warrant increased scrutiny
Protecting Our Protectors: Why Title VII Should Apply to the Uniformed Military Following the Supreme Court\u27s Decision in \u3ci\u3eBostock v. Clayton County\u3c/i\u3e
Get PDFThis Note argues that Title VII should apply to uniformed military members following the Supreme Court’s decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020). Foremost, the current intra‑military remedies uniformed military members may bring a discrimination claim pursuant fail to effectively combat discrimination in the United States military due to several critical deficiencies. This Note demonstrates that the defects within the current intra‑military remedies tacitly permit, rather than discourage, discriminatory conduct.
This Note then examines why the military has historically resisted civilian reform measures to the military justice system. During this examination, this Note argues that the United States military is bifurcated between uniformed military members who work within the military’s increasingly complex military bureaucracy and front-line soldiers exposed to combat. This Note contends that uniformed military members tasked with operating the military’s bureaucracy work in an environment more analogous to the civilian workplace. Accordingly, these military members fall within the purview of civilian reform measures. Regarding combat soldiers, this Note explains that throughout the history of the United States, the military has been forced to accept civilian reform measures designed to end discriminatory practices within the military. Significantly, these policies made no distinction between combat and non-combat soldiers.
This Note then argues why a Title VII claim is the appropriate remedy to combat discrimination in the United States military before demonstrating why Title VII should apply to uniformed military members following the Supreme Court’s decision in Bostock. Based on the majority’s decision in Bostock, this Note concludes that the rationales set forth by the United States Courts of Appeals prior to Bostock excluding uniformed military members from Title VII’s remedial scheme should no longer be followed considering Bostock.
This Note calls on the judiciary to reconsider whether Title VII should apply to uniformed military members. Members of the United States military rightfully deserve protection under the very laws they preserve pursuant to their service and sacrifice
