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Repealing the Consumer Welfare Standard: FTC as Central Economic Planner?
Get PDFThe recent repeal of the consumer welfare standard and proposals for increased rulemaking authority threaten to give the Federal Trade Commission an unprecedentedly massive ambit under which to regulate. Under Section 5 of the FTC Act, the FTC is empowered to regulate unfair methods of competition as well as unfair deceptive acts or practices that affect commerce. As of 2015, the FTC was tethered to the consumer welfare standard when regulating under Section 5. However, in July 2021, the FTC abrogated the 2015 policy statement, thereby giving itself the ability to either replace the consumer welfare standard with a broader standard or in fact replace it with no intelligible standard at all. The effect of this abrogation allows the FTC to pursue a broad set of social goals with less scrutiny from outside authorities. Furthermore, there have been recent proposals to allow the FTC to determine new methods of unfair competition under Section 6(g) of the FTC Act. The expansion of this section not only represents a usurpation of legislative authority but also hinders the ability of the FTC to regulate. The net effect of these changes would harm companies and consumers by increasing the likelihood of errant intervention, increasing rent-seeking behavior by private interests, increasing inefficiency in the economy, and making it more difficult to create successful antitrust regulation
Dog Process or Due Pupcess? Federal Court Misses Opportunity to Modernize Pet Due Process Jurisprudence Lunon v. Botsford, 946 F.3d 425 (8th Cir. 2019).
Get PDFNicknames such as Boo Bear, Snookums, Sweet Precious Baby, or Cutie Patootie fondly show how owners might typically interact with their pets. With Americans spending approximately $95.7 billion on pets in 2019, the Uniform Trust Code expressly allowing trusts to care for deceased owners’ pets, and the COVID-19 pandemic bringing a sharp increase in dog adoptions, pets are becoming an ever more significant part of the American family. When a pet escapes or goes missing, most owners desperately want them to return home safely; microchipping is one proactive, reliable option for owners to help ensure they do
Questions of Arbitrability in the World: Comparing the Jurisprudence of the United States and India
Get PDFIf a matter is not arbitrable, then it may not be arbitrated.2 Arbitrability, generally, refers to the authority that an arbitrator possesses to decide a matter.3 A challenge to that authority is considered a “question of arbitrability.”4 There are three types of questions of arbitrability: (1) substantive challenges that a dispute is not arbitrable under the terms of an arbitration clause; (2) the contention that, despite substantive arbitrability, procedural circumstances exist that prevent arbitration; and (3) “post-award attacks on an arbitrator’s decision.”5 Of those three, “whether a matter is arbitrable under a given arbitration clause” has had recent developments in its jurisprudence.6 This type of challenge is referred to as “substantive arbitrability,”7 which itself contains specific “threshold arbitrability questions.”8 One example of this type of threshold arbitrability question is whether the parties have, by contract, delegated challenges of substantive arbitrability to the arbitrator
Ending Political Discrimination in the Workplace
Get PDFCurrently, a significant disparity exists in workplace legal protections for an employee’s political affiliation. On one hand, public sector (federal, state, or local government) employees enjoy a bevy of protections. For example, twenty million state and local government employees rely on the First Amendment (and 42 U.S.C. § 1983) to guard against workplace discrimination based on political affiliation. Over two million federal government civil service employees lean on the Civil Service Reform Act of 1978 (CSRA) to provide that same protection
Home Run or Strike Out: Can Baseball Arbitration Solve America’s Medical Debt Crisis?
Get PDFIn 2012, a New York woman named Claudia Knafo found herself in need of a complicated spinal surgery. She immediately began the long and arduous process of selecting a physician in her insurance network, even going so far as to interview prospective surgeons to confirm their in-network status. Claudia finally selected a well-regarded local surgeon, whose website verified his in-network status with her health insurance plan, after calling his office to confirm. Weeks after her successful spinal surgery, Claudia received notice that the doctor’s receptionist and website were incorrect—the surgeon was not actually in-network. Claudia’s health insurance plan provided 101,000 value of the operation, but she still found herself saddled with a surprise medical bill of 66,000 from her surgeon. Faced with what she describes as a “nuclear attack” from both her surgeon and insurer, Claudia began searching for help. Her story found its way to insurance regulators, consumer advocacy groups, the state attorney general’s office, and finally New York State lawmakers
Victims as Instruments
Get PDFCrime victims are often instrumentalized within the criminal legal process in furtherance of state prosecutorial interests. This is a particularly salient issue concerning victims of gender-based violence (GBV) because victim testimony is typically considered essential for successful prosecution of these types of crimes. Since the U.S. Supreme Court\u27s 2004 decision in Crawford v. Washington, courts require declarants to be available for cross-examination on testimonial hearsay evidence. Consequently, criminal legal actors are further incentivized to employ highly coercive practices aimed at securing GBV victims\u27 participation in the criminal legal process as evidentiary tools. These practices include arresting and incarcerating victims through material witness warrants and contempt power, criminally charging and threatening charges against them, and conditioning key assistance measures upon their full cooperation with law enforcement. This Article critically examines paternalistic and utilitarian justifications for these practices and exposes their misalignment with the core principles of paternalism and utilitarianism. It then examines the state\u27s approach to GBV victims under three interrelated conceptual frameworks which have thus far been overlooked in this context: deontological ethics, dehumanization constructs, and liberal legal principles. This novel critique argues that the practices at issue are incompatible with foundational principles concerning the dignified treatment of individuals within the liberal legal order. It also contends that the targeted use of these coercive mechanisms operates as punishment for victims to fail to conform to ideal and legitimate GBV victim stereotypes, which require full cooperation with criminal legal authorities. Following this analysis, the Article proposes a normativie shift in the approach, from one that conceptualizes GBV victims primarily as instruments to one that constructs them as agents whose dignity and autonomy the state must respect
A Declaration of Rights Lost: The Diminution of Tennesseans\u27 Civil Rights
No full textThe Constitution of the State of Tennessee, in its current form, offers to the citizens of the Volunteer State a Declaration of Rights that prevents abuses by those in power against the governed. To paraphrase late Associate United States Supreme Court Justice Antonin Scalia, the Tennessee Constitution, which was adopted following the state\u27s secession from and eventual return to the United States during the Civil War, continues to serve as the charter of Tennesseans\u27 liberties. Indeed, the Tennessee Constitution\u27s Declaration of Rights proclaims in the very first section, [A]ll power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness .... Even still, over the last decade, the rights so loftily enshrined in the Tennessee Constitution for the peace, safety, and happiness of Tennesseans have slowly been stripped away and weakened by the Tennessee Supreme Court acting hand-in-hand with the Tennessee General Assembly.
This Article argues that since Justice Page\u27s confirmation, the Tennessee Supreme Court, working in concert with the Republican-controlled General Assembly, has stripped and weakened Tennesseans\u27 rights under the State Constitution\u27s Declaration of Rights. Relying on policy justifications such as the advancement of law and order and creating a welcoming business climate, Tennessee\u27s government has promoted the interests of government actors and corporate entities over those Tennesseans whose peace, safety, and happiness the government was formed to protect. The competing policy arguments are rather clearly delineated. On one hand, the State can encourage law enforcement to act aggressively to ferret out crime consistent with the obligations of the United States Constitution alone, and the government can incentivize business investment in the State through tort reform that is favorable to corporate defendants. On the other hand, the State can protect Tennesseans\u27 rights, as expressed in the Declaration of Rights, by requiring the police and prosecutors to jump through additional hoops to investigate and interact with citizens, and by holding the right to a jury sacrosanct for Tennesseans\u27 who are injured and seek a remedy in the State\u27s courts. This Article demonstrates that the former argument is currently winning the day in the Volunteer State, both in the General Assembly and at the Supreme Court.
This Article does not, however, seek to determine which of these positions is better for Tennessee on balance. Rather, this Article offers the simple fact that, based on a review of the record of cases considered by the Tennessee Supreme Court since Justice Page\u27s confirmation, Tennesseans\u27 rights that have traditionally been protected are no longer receiving the same deference. This is not an opinion; it is a fact. Through disregarding long-standing precedent of the State\u27s high court, the modern court has weakened the Declaration of Rights
