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The Role of Antitrust and Pole-Attachment Oversight in TVA Broadband Deployment
Full text linkAs part of the Infrastructure Investment and Jobs Act (IIJA), signed by President Joe Biden in November 2021, Congress provided $42.5 billion for broadband deployment, mapping, and adoption projects through the Broadband Equity, Access, and Deployment (BEAD) program, with the stated goal of directing the funds to close the so-called “digital divide.” But actions by pole owners—such as refusing to allow broadband companies to attach their lines on reasonable and nondiscriminatory terms—threaten to slow broadband deployment significantly.
Section 224 of the Communications Act exempts municipal and electric-cooperative (co-op) pole owners, such as the LPCs, from oversight by the Federal Communications Commission (FCC). At the same time, the TVA’s authority over pole attachments is not subject to oversight by state governments. This loophole means that it is the TVA, not the FCC, that sets the rates for pole attachments. The TVA’s rates are significantly higher than those of the FCC, and the TVA’s LPCs often can avoid the access requirements typically required by states and the FCC. The TVA and the government-owned LPCs also may not be subject to antitrust law. The TVA and its LPCs hold a resource critical for broadband deployment, while it is essentially impossible for private providers to build competing pole infrastructure. In situations like this, government entities that participate as firms in the marketplace—known in the literature as “state-owned enterprises” (SOEs)—should be subject to antitrust law in order to ensure access by private competitors.
The DOJ should examine the practices of the TVA and its LPCs under antitrust law. Antitrust clearly applies to those LPCs that are private co-ops, which have no immunities. But Congress should clarify that the TVA and government-owned LPCs are likewise subject to antitrust law when they act according to their “commercial functions” or as “market participants.” Congress should also consider bringing the TVA and all of its LPCs under the purview of the FCC’s Section 224 authority over pole attachments
Durability and Defamation: How Defamation Law Continues to Adapt in the 21st Century
Full text linkA commentary on the history of defamation and how defamation law has adapted over time
Uncompelling Uniformity
Full text linkWhen the potential for a circuit split arises, courts face competing values in determining the best course of action. A circuit may strive to balance consistency, predictability, uniformity, and correctness, among other values. But balancing uniformity and correctness is beyond the circuit’s remit; to engage in it frustrates the constitutional structure and congressional design of the federal judiciary. In other words, it is an illegitimate form of adjudication. Contemplating uniformity between circuits throws courts into the world of policymaking, a domain rightly reserved for the political branches.
By prioritizing uniformity, courts not only overstep their bounds but also introduce additional challenges. Such a focus stifles dialogue between circuits, exacerbates the counter-majoritarian problem, and obstructs judicial decisionmaking. The rationale is based on a fallacious way of reasoning and distorts judicial decisionmaking.
Courts should refrain from letting uniformity drive their decisions, leaving the responsibility of achieving national uniformity to the Supreme Court and Congress. This method of adjudication ensures that the courts stay within their constitutionally confined role, and leaves policymaking to the political branches.
Understanding this dynamic can help distill what a coherent and valid theory of adjudication could look like. A theory of adjudication must be constrained by and further constitutional values. As shown here, a valid theory of adjudication cannot and must not include circuit uniformity
\u3ci\u3eTransUnion\u3c/i\u3e, \u3ci\u3eVermont Agency\u3c/i\u3e, and Statutory Damages Under Article III
Full text linkThe Supreme Court concluded in TransUnion LLC v. Ramirez that a plaintiff may not sue to collect statutory damages under a statute such as the Fair Credit Reporting Act simply because the defendant violated a right Congress conferred on the plaintiff. Article III instead requires the plaintiff to show that the statutory violation resulted in a “concrete” injury with “a ‘close relationship’ to a harm ‘traditionally’ recognized as providing a basis for a lawsuit in American courts.” Under the majority’s reading of Article III, “an injury in law is not an injury in fact.”
The TransUnion Court made no effort to explain how its conclusion could be reconciled with Vermont Agency of Natural Resources v. United States ex rel. Stevens. The Vermont Agency Court unanimously ruled that Congress may authorize a private qui tam informer to sue for statutory penalties based on a violation of duties owed to the public, even though the informer has not suffered any particularized injury attributable to the defendant’s unlawful conduct. The Court closely examined statutes of the First Congress in light of Anglo-American legal history to find qui tam actions compatible with Article III. Early legislators understood qui tam actions to present “cases” or “controversies” traditionally resolved through the judicial process.
A comparable examination of late eighteenth-century federal legislation undermines the majority’s decision in TransUnion. Statutory damages are a modern version of statutory forfeitures available under framing-era penal statutes. Sir William Blackstone explains that a defendant who violates a penal statute must pay a statutory forfeiture to whomever the legislature specifies, whether an aggrieved party, a public official, or a qui tam informer. Just as Congress awarded forfeitures to uninjured qui tam informers in early federal legislation, Congress likewise directed forfeitures to aggrieved parties who suffered no injury beyond the defendant’s violation of an individual right protected by statute. By claiming judicial authority to determine whether a plaintiff has suffered a “concrete” injury warranting recovery of statutory damages, the TransUnion Court inverted the framing-era relationship between legislatures and courts
The Common Law and SEC Rule 10B-5(B): Narrowing the Securities Fraud Exception to the First Amendment
Full text linkCourts have read Section 10(b) of the Securities Exchange Act of 1934 and regulations promulgated thereunder as requiring less than every element of common law fraud. In particular, the Securities and Exchange Commission (SEC) Rule 10b-5(b), which prohibits merely false or misleading statements about securities, often proscribes and deters speech that does not constitute common law fraud. Namely, in prosecuting a Rule 10b-5(b) claim, the SEC currently does not need to prove reliance, causation, and harm—three essential elements of common law fraud. Though the First Amendment generally protects false speech, it does not shield fraud. Upon adopting the First Amendment, the Framers preserved the already existing common law action for fraud. Given these historical origins, this Note argues that courts should apply the First Amendment’s fraud exception only to statutes and rules requiring proof of every element of common law fraud. Limiting the fraud exception in this way would significantly impact the SEC, which regulates more speech than perhaps any other federal agency. This Note contends that without proof of the common law elements of reliance, causation, and harm, courts should not apply the fraud exception to SEC-prosecuted Rule 10b-5(b) actions. Instead, courts should subject these actions to full First Amendment scrutiny
Understanding Florida\u27s HB 1105: What Parents Need to Know About the End of Special Education Certificates of Completion
No full textThe goal of this white paper is to explain the implications of HB 1105 for students with disabilities and their families. It outlines the background of Florida’s previous graduation framework, describes the new diploma options now available, and explores both the potential benefits and challenges of this transition. Finally, it provides practical guidance for parents, including steps to take within Individualized Education Plan (IEP) meetings, questions to ask school administrators, and community resources that can assist families navigating this change
Legislatively Inhibiting Children\u27s Development of the Mens Rea to Commit Genocide During Adulthood
No full textThis Article concerns how legislatures in America are stanching development of the criminal intent to commit genocide. Lawmakers have taken aim at genocide, not through the barrel of a gun, but, rather, by imbuing schoolchildren with values and psychological attributes that gradually counteract development of a génocidaire’s mens rea. Of course, sans mens rea, sans perpetration of this, the “crime of crimes.”
The counteractant process is the result of joining a substantively targeted pedagogy with the force of law so as to create state genocide-education mandate statutes. There has been a certain prescience in this. Accumulating expert opinion, studies, and surveys adventitiously show that the statutes’ authors are on the right track: genocide education is indeed effective in producing antigenocidal dispositions, provided that the laws are competently implemented.
It is, therefore, a good thing that genocide-education mandate statutes are being enacted at an increased rate. The proliferation may be a reaction both to the endless occurrence of mass atrocities, including genocides, around the world and to the recent international upsurge in politically far-right governments espousing bigotry, hatred, and intolerance towards the other
Reforming Business Taxation by Introducing a Resident Owner-Based Business Income Tax (ROBIT)
No full textFighting corporate tax avoidance is not a suitable method to save the integrity of the corporate tax. Rather, more fundamental reform is needed focusing on taxing the individual shareholders at residence. For this purpose, this Article proposes a resident owner-based business income tax (ROBIT). The ROBIT retains taxation at the entity level but provides for reduced flat tax rates for all business enterprises, taxation only of the rent by introducing an ACE regime, and exemption of inter-company dividends. At the level of the individual shareholder, dividends and capital gains are taxed as ordinary income. Integration takes place via an imputation system for domestic taxes and (short of reciprocity) deduction of foreign taxes or alternatively through a withholding tax on dividends and capital gains. To curtail deferral, capital gains are taxed by charging interest for the holding period until realization for nontraded assets and for traded assets by taxing them on a mark-to-market basis. Some additional measures are also proposed especially referring to the residence taxation of individuals. By earmarking the revenue from the enactment of the ROBIT to redistributive purposes, reform can happen and will be sustainable. Support can also come from corporate managers if windfalls for existing shareholders are avoided through phased-in reform. The ROBIT will attract and boost investment and all the positive externalities that it brings. Some emigration of individuals as a reaction is possible, but it can be addressed by regional cooperation which is easier as regards individual taxation. Finally, the ROBIT is superior compared to other proposals for corporate tax reform, especially destination-based corporate tax proposals