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Injurers versus Victims: (A)Symmetric Reactions to Symmetric Risks
Get PDFTort models assume symmetry in the behavior of injurers and victims when faced by a threat of liability and a risk of harm without compensation, respectively. This assumption has never been empirically validated. Using a novel experimental design, we study the behavior of injurers and victims when facing symmetric accident risks. Experimental results provide qualified support for the symmetric behavior hypothesis
The Impact of the Basic Law: Israel as the Nation State of the Jewish People on the Status of the Arabic Language in Israel
Get PDFTransition Administration
Get PDFThe period from November 3, 2020 to January 20, 2021, was unlike any presidential transition in our history. President Donald Trump refused to accept his ballot-box defeat, instead battling to overturn the election’s outcome. This dramatic public campaign was waged in state and federal courts, state legislatures, the offices of state and local election officials, the Department of Justice, and finally the halls of Congress, where on January 6, 2021, a mob incited by the President stormed the Capitol with the explicit goal of preventing the final counting of electoral votes for Joe Biden. These efforts had more mundane and less visible aspects as well. Not least, the President’s rejection of the election’s outcome led to delay and obstruction of the Biden transition team. Under the circumstances, the transition was remarkably successful. But the avoided threat to the law and norms of presidential transitions—constitutional, statutory, and conventional—calls for a taking of stock. What mechanisms enabled even moderate success in such circumstances, and what changes can be made to help ensure smoother sailing in the future? Even in ordinary times, when unsuccessful presidential candidates concede defeat, congratulate victorious rivals, and facilitate the transfer of power, presidential transitions can be fraught and uncertain affairs. It is a truism that “the country has only one President at a time,” and reading the Constitution seems to confirm that understanding. But while the Constitution largely ignores the President-elect, statutes and conventions do not, establishing a regime in which the President-elect is not simply a private citizen waiting in the wings. To an ever-increasing extent, the President-elect, Vice President elect, and the sweeping transition apparatus are intertwined with and inseparable from the operations of the federal government. The complex status of transitions raises a number of questions regarding authority and obligation. This Article seeks to address those questions. As we show, the scaffolding of law and, at least as important, practice that surrounds transitions goes far to make the peaceful and effective transfer of power possible. A central challenge is avoiding the risk that profound political and ideological hostilities will derail the process; the current regime does so by ensuring federal support for the transition operation, by requiring cooperation on the part of the outgoing administration, and, perhaps most importantly, by placing primary responsibility in career agency employees rather than political appointees. In the modern era, this regime has been largely successful. But it fails to go far enough in relying on career officials, and in some key respects, does not center those officials as fully as it should. The Article concludes with a discussion of a number of possible statutory reforms, including to the defect that received the most attention in 2020: reliance on the Administrator of the General Services Administration to “ascertain” the apparent victor in order to trigger the provision of post-election resources
CJEU Déjà Vu: Facilitating International Data Transfers and Avoiding Internet Balkanization in the Wake of Schrems II by Enacting Targeted Reforms to US Surveillance Practices
No full textPrivate and public actors collect and retain vast amounts of personal data. Governments have responded to this data revolution by passing data protection laws, which limit the collection, use, storage, and disclosure of personal data. The most comprehensive data protection scheme exists in the European Union, where the right to protection of personal data is guaranteed as a fundamental freedom. The General Data Protection Regulation (GDPR) gives that right substance by establishing a comprehensive regulatory scheme that applies to any entity processing personal data concerning an EU citizen, whether that entity is located in the EU or not. The GDPR also mandates that personal data meant for processing cannot be transferred to a country outside the EU unless that country “ensures an adequate level of protection” which is “essentially equivalent” to that under EU law. This is a problem for the United States, which does not have a federal data protection law. To get around this, the US and EU negotiated a trade pact and established a program, Privacy Shield, which would allow US organizations to voluntarily comply with the requirements of the GDPR in order to freely import data from the EU to the US. This delicate international relationship was thrown asunder on July 16, 2020 when the Court of Justice of the European Union (CJEU), in a decision now referred to as Schrems II, ruled that Privacy Shield did not meet the GDPR’s requirements for cross-border data transfers. The CJEU found that the US government’s access to personal data of EU citizens under US national security surveillance laws lacked sufficient safeguards and judicial protections, so Privacy Shield participants could not provide all of the protections required by the GDPR. The short-term effect of Schrems II has been mass confusion for US organizations relying on Privacy Shield to legally import personal data from the EU. The long-term effects could threaten the estimated $7.1 trillion transatlantic economy and the very nature of the global internet, as organizations opt for data localization to avoid incurring the severe financial penalties under the GDPR. This Note argues that the US’s approach to this problem—working with the European Commission to develop an “enhanced Privacy Shield” program—is a doomed effort because it will not relieve organizations of their obligations under US law. Instead, the US should learn from its mistakes in Schrems I & Schrems II and enact legislative reform. Rather than focusing on crafting a comprehensive federal privacy law, which could solve this problem, it would be more prudent to enact modest reforms to US foreign intelligence surveillance law targeted at the issues raised in Schrems II—a Privacy Shield Enabling Act. These reforms would enable an enhanced Privacy Shield program to survive a legal challenge before the CJEU by including adding safeguards to limit unnecessary collection of personal data concerning EU citizens and providing those data subjects with actionable rights before US courts
The Rule of Reason as a Discovery Procedure: A Response to Ramsi Woodcock’s Hidden Rules of a Modern Antitrust
Get PDFIn The Hidden Rules of a Modern Antitrust, Ramsi Woodcock argues that courts’ systematic use of the rule of reason, which underpins most of contemporary antitrust law, effectively amounts to an unwarranted blanket exemption from liability for potentially egregious practices. According to Woodcock, this is due to the interaction between the exorbitant cost of prosecuting cases under this standard (compared to the cost of enforcing per se rules), the courts’ increasing application of the rule of reason, and the shrinking budgets of antitrust enforcement agencies. As this Response discusses, Woodcock’s bold claims ignore or misconstrue several critical aspects of the modern antitrust apparatus. Chief among these is the uncertainty that underpins antitrust enforcement, and the rule of reason’s role in decreasing this uncertainty. It takes time and experience for courts to form an opinion about the value of certain forms of business conduct, and rule of reason litigation increases the accuracy of all subsequent litigation—and the ability of both economic actors and antitrust enforcers to predict judicial outcomes and adjust their practices accordingly. This stands in stark contrast to Woodcock’s model, which assumes that courts are unable to differentiate between forms of ambiguous conduct (and yet simultaneously well informed enough about enforcers’ budget constraints to know whether they can “afford” to litigate under the rule of reason). Winston Churchill famously quipped that “it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time . . . .” Much of the same could be said about the rule of reason. While it is certainly not perfect, policymakers have yet to find another standard that provides the same flexibility to accommodate ever-evolving forms of conduct with initially ambiguous effects on consumer welfare. Woodcock’s paper underplays these important virtues, while his more pointed critiques often miss the mark.\u2
3.3 Presidential Law with Professor Shalev Roisman
No full textProfessor Shalev Roisman (University of Arizona Law School) discusses his forthcoming article in Minnesota Law Review, Presidential Law
