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SHIFTING THE CENTRAL PARADIGM TO DISPUTE SYSTEM DESIGN
Get PDFThis post argues that instead of identifying our field as ADR, we should use dispute system design as our central theoretical framework. Although people often think of DSD as being used only in large organizations, individuals and small practice groups also handle streams of cases and can use these principles and techniques to improve their case management and dispute resolution procedures. DSD is about tailoring dispute systems to the needs of stakeholders, especially disputing parties. Good designs fit the stakeholders’ context and culture so that the dispute processes produce as much satisfaction of the parties’ procedural and substantive goals as reasonably possible
Time for a New Shoe? Making Sense of Specific Jurisdiction
Get PDFMany of us can likely recall the uncomfortable feeling of a shoe that just does not fit. Whether too big or too small, it no longer offers the protection it was designed to provide and risks only pain and injury. Either way, it is time for a new shoe. Personal jurisdiction has its own shoe. In the groundbreaking case of International Shoe Co. v. Washington, the Supreme Court of the United States set out the necessary principles for a court to exercise personal jurisdiction over a defendant. These principles have endured for nearly 100 years. However, recent expansions on personal jurisdiction doctrine have led some in the legal community to question if the International Shoe principles no longer fit the needs of plaintiffs injured by national and global corporations, or if the principles have been expanded to the point they are unrecognizable. International Shoe dealt specifically with specific jurisdiction, a type of personal jurisdiction pertaining to out-of-state corporate defendants
Gig Workers: Walking a Tightrope Without a Safety Net
Get PDFAnnually every spring—until the COVID-19 pandemic which began in March 2020, professional sports teams turn to their own budding prospects. Rookie drafts garner media attention and propel the possibility of staggering salaries into the headlines. Undrafted free agents, for their part, begin searching for jobs. With a lesser celebrity profile, many American workers have themselves become free agents in an economy transformed by technology The static newspaper classified ads of the past have been joined by vast online platforms, such as TaskRabbit and Freelancer.com, that allow jobseekers to connect with individuals seeking a diverse range of services—from graphic design and data entry to home furniture assembly. Yet, this flexibility comes with a flipside, potentially placing workers on a path to economic insecurity and at the crossroads of a complicated legal debate about what rights and benefits they are due
Technology Mergers and the Market for Corporate Control
Get PDFSeveral high-profile academic articles and reports claim to have identified important gaps in current merger enforcement rules, particularly with respect to tech and pharma acquisitions involving nascent and potential competitors—so-called “killer acquisitions” and “kill zones.” As a result of these perceived deficiencies, scholars and enforcers have called for tougher rules, including the introduction of lower merger filing thresholds and substantive changes, such as the inversion of the burden of proof when authorities review mergers and acquisitions in the digital platform industry. Meanwhile, and seemingly in response to the increased political and advocacy pressures around the issue, U.S. antitrust enforcers have recently undertaken several enforcement actions directly targeting such acquisitions. As this paper discusses, however, these proposals tend to overlook the important tradeoffs that would ensue from attempts to decrease the number of false positives under existing merger rules and thresholds. While merger enforcement ought to be mindful of these possible theories of harm, the theories and evidence are not nearly as robust as many proponents suggest. Most importantly, there is insufficient basis to conclude that the costs of permitting the behavior they identify is greater than the costs would be of increasing enforcement to prohibit it
Towards Nondelegation Doctrines
Get PDFWhen discussing the nondelegation doctrine, courts and scholars frequently refer to Congress’ “legislative power.” The Constitution, however, speaks of no such thing. Instead, the Constitution vests a wide variety of “legislative powers” (plural) in Congress, including the powers to “regulate commerce,” “declare war,” “coin money,” and “constitute tribunals.” Shoehorning Congress’ diverse array of powers into a one-size-fits-all nondelegation doctrine has necessitated the development of the vaguely worded “intelligible principle” test. Unsurprisingly, that malleable test has failed to produce a judicially manageable standard. In response, this Article proposes that the nondelegation doctrine be transformed into a series of nondelegation doctrines, each corresponding to one of Congress’ distinct powers. Adopting such an approach can lessen the risk that reviving the nondelegation principle – a task the current Supreme Court has expressed an interest in taking on – will result in a complete reworking of the modern administrative state
Show-Me the Money: Outdated Solicitation Laws Expose Municipalities to Liability
Get PDFOn any given night, roughly half a million people in the United States are homeless. In Missouri alone, approximately 6,500 people are homeless on any given day. Homeless populations create health, safety, and financial complications for municipalities. A strategy used by many municipalities to control these complications is the passage of ordinances restricting the actions of homeless populations. Commonly, these laws restrict solicitation, colloquially known as panhandling. Some laws ban panhandling altogether. While panhandling ordinances may have been a feasible solution in the past, a recent United States Supreme Court decision, Reed v. Town of Gilbert, has rendered many of these laws unconstitutional by limiting the circumstances under which municipalities may restrict speech. Though the Supreme Court handed down Reed over seven years ago, local governments have been slow to update their laws to comply with the new standar
From Sherman to Shut Down – Understanding Antitrust Legislation Targeting Big Tech
Get PDFBeginning in the late 19th and 20th centuries and extending into present day, United States antitrust legislation has sought to safeguard consumers and maintain fair competition among businesses. While the purpose of antitrust legislation has always been to encourage free market principles, changing technologies within re-cent decades, as well as the rise of so-called “Big Tech”, has disrupted the “traditional” business landscape. This article begins with a general history of antitrust legislation within the United States in an effort to provide context regarding legislators’ recent push for legislation targeting Big Tech giants. In analyzing recent antitrust legislation, this article provides insights regarding the potential dangers which could result from the passage of these bills. Ultimately, this article argues that American legislators, and more generally Americans at large should consider the potential unintended consequences the passage of these bills could have for businesses, and more specifically the tech industry, at large