3394 research outputs found
Sort by
Understanding Balance Requirements for Standards-Development Organizations
Get PDFMost technical standards-development organizations (SDOs) have adopted internal policies embodying “due process” criteria such openness, balance of interest, consensus decision making and appeals. Yet these criteria lack a generally-accepted definition and the manner in which they are implemented varies among SDOs. Recently, there has been a renewed interest in the principle that SDOs should ensure a balance of interests among their stakeholders. This article explores the origins and meaning of the balance requirement for SDOs. In doing so, it identifies four “tiers” of balance requirements, ranging from those required of all SDOs under applicable antitrust law, to those required of SDOs that wish to benefit from particular statutory and accreditation schemes, to those that are purely voluntary. Beyond first tier balance requirements, which prohibit anticompetitive attempts to skew decision making processes within an SDO, the imposition of greater degrees of balance among SDO stakeholders, whether through numerical quotas or affirmative participant recruitment efforts, are largely voluntary and dependent on an SDO’s policy preferences
Trump, Energy Policy, and Hard Look Review
Get PDFFor those concerned about climate change, the Trump administration’s energy policy is alarming. It aims to unravel every corner of the Obama administration’s climate legacy, consistent with an overall sweep of deregulation. Substantively, the Trump policy also departs starkly from the approach of the last decade, embracing traditional energy sources—fossil fuels and nuclear power—above all else. The Trump administration’s moves on energy beg the question: What limits, if any, does this policy approach face? This chapter begins to answer that question. Employing the lens of arbitrary and capricious, or “hard look,” review from administrative law, the chapter outlines principles that may constrain the Trump administration going forward—as well as areas where the administration has room to move.Our contributions are threefold. First, we detail the pentagonal principles that define the Trump energy policy (yes, there is a policy). Second, we establish that this policy is highly political in nature, in that it both predates Trump’s time in office and is connected to very specific projects and rules (even if that focus is short- rather than long-term). Third, we summarize the administration’s efforts to date and then explain the ways in which hard look review is likely (or unlikely) to throw up barriers to those actions
Addiction as Disease
Get PDFThe opioid addiction epidemic is the most overwhelming public health crisis our country has faced. It is now creating a legal crisis, as the its poisonous fruits spill over into the criminal, tort, and family courts. The epidemic costs the U.S. economy about $500 billion every year, and the pressure is crippling our legal systems. This Article is an attempt to relieve some of that pressure, by advocating for a comprehensive public health campaign based upon a new model of addiction. Research shows that the prevalent “moral choice” model of addiction has facilitated stigma and discouraged treatment, by viewing affected individuals as blameworthy, different in kind, and hopeless. Even when programs are accessible, which they often are not, individuals will not seek treatment because they fear adopting the label of “addict.” In this Article, I affirmatively reject the moral choice model, identifying it as an obstacle to mitigating the opioid epidemic. In its place, I offer a model of addiction that more closely tracks its complex disease etiology, while humanizing people with addiction, removing stigma, and encouraging treatment. I refer to this model as the “integrated disease model,” or IDM, as it explains addiction as a neuro-genetic phenomenon, but does not locate addiction entirely in the brain. Rather, it places addiction on equal footing with other chronic diseases, such as lung cancer or diabetes, each of which has significant genetic, behavioral, and environmental causes. This Article will explain 1) how the moral choice model leads to no treatment and poor treatment, 2) how the law has furthered stigma through the criminalization of addiction, 3) and why we need to fund a comprehensive public health campaign based upon findings from neuro-genetics and public health. The IDM emphasizes the biological continuum of genetic risk factors to which we are all susceptible, the neurological networks that are impaired once the addiction has taken hold, and finally, the incredible power of evidence-based treatments. Explaining addiction in this way – as a treatable, complex disease — has been shown to reduce stigma and encourage treatment
Trickster Law: Promoting Resilience and Adaptive Governance by Allowing Other Perspectives on Natural Resource Management
Get PDFThe Anthropocene requires a new approach to natural resources law and policy, an approach that this short article terms trickster law. Trickster law incorporates insights from resilience theory, adaptive governance scholarship, and cultural/anthropological studies of trickster tales to create a legal approach to natural resource management that is precautionary, engaged in proactive planning, based in principled flexibility, and pluralistic. This article focuses on the pluralism component, presenting three examples of how law modified to be more inclusive and respect different value systems has generated new approaches to natural resources management that better promote social-ecological resilience to climate change and other anthropogenic stressors
Natural Resources and Natural Law Part I: Prior Appropriation
Get PDFIn recent years there has been a resurgence of civil disobedience over public land policy in the West, sometimes characterized by armed confrontations between ranchers and federal officials. This trend reflects renewed assertions that applicable positive law violates the natural rights (sometimes of purportedly divine origin) of ranchers and other land users, particularly under the prior appropriation doctrine and grounded in Lockean theories of property. At the same time, Native Americans and environmental activists on the opposite side of the political-environmental spectrum have also relied on civil disobedience to assert natural rights to a healthy environment, based on public trust and other principles. This article explores the legitimacy of natural law assertions that prior appropriation justifies private property rights in federal grazing resources. A companion article will evaluate the legitimacy of public trust and related assertions of natural law to support environmental protection
Harvest the Wind, Harvest Your Dinner: Using Law to Encourage an Offshore Energy-Food Multiple-Use Nexus
Get PDFMost scholars discuss the food-water-energy-climate nexus as it emerges on land. Less attention has been paid to the food-water-energy-climate nexus as it exists in the ocean, but that nexus exists—and it is beginning to be strained. This Article, a companion piece to the forthcoming “It’s Not Just an Offshore Wind Farm,” explores the international drive to combine offshore wind facilities with marine aquaculture, an emerging example of the water-energy-food nexus in the marine environment. Many nations are becoming increasingly interested in both offshore wind farms and open ocean marine aquaculture, but both enterprises take up considerable space in the marine environment. The resulting actual and potential crowding creates and threatens conflicts both with other uses, such as fishing, ecotourism, and shipping, and with marine protection and biodiversity goals. In Europe, where offshore wind facilities have become quite extensive, co-location of facilities has emerged as a strategy to reduce competition for offshore space that might simultaneously benefit marine aquaculture and enhance food security. This article examines the increasing drive toward co-locating offshore wind and open ocean aquaculture facilities and offers suggestions for how law might better promote this form of co-location through ongoing marine spatial planning efforts
Criminalizing Battered Mothers
Get PDFHow a domestic violence survivor responds to the abuse she is experiencing depends on many factors. Some critical considerations include her access to resources, desire to stay in her relationship, and assessment of her own safety. Criminal and civil court systems place enormous pressure on survivors to separate from their abusive partners. Not only are survivors with children pressured to leave, they are punished when they stay. That punishment can come in any combination of diminished custody rights, limited parental rights, and incarceration. Yet a survivor who flees with her children is not immune to these same consequences: if she leaves in a manner that is not state sanctioned, she may be punished criminally or civilly for kidnapping her children, regardless of the violence she was experiencing at home.
Criminal parental kidnapping charges can cost a survivor her liberty, safety, and relationship with her children. While some state statutes attempt to address the potential for flight from domestic violence, many do not acknowledge the intersection between parental kidnapping and domestic violence at all and none provide sufficient safeguards for battered parents. Survivors are caught in a double bind in which the state can both pressure them to leave abusive relationships and also punish them for the manner in which they do so. A survivor who does not incur criminal parental kidnapping charges may still be negatively impacted by her decision to leave in both the child welfare system and domestic relations court.
Large scale systemic change is necessary to truly enhance survivors’ independence. In addition to amending parental kidnapping laws to adequately anticipate and respond to safety seeking defendants, individual attorneys and the larger domestic violence movement must become more willing and better prepared to advocate for all survivors across and outside of the legal system
A Social Welfare Theory of Inheritance Regulation
Get PDFThe law of succession grants donors broad freedom to decide how to distribute their property upon death. It does so in hopes of increasing social welfare in two general ways. First, freedom of disposition generates socially beneficial estate planning decisions. In particular, donors are in the best position to evaluate their own specific circumstances and to make decisions that, on the whole, produce the greatest utility from the transfer of their estates. Second, the donor’s autonomy over estate planning decisions incentivizes socially beneficial behavior, such as productivity during the life of the donor. Because the law views freedom of disposition as maximizing social welfare in these ways, it generally defers to the estate planning decisions of individual donors.
Although the law typically relies upon the choices of autonomous decision-makers to maximize the social welfare that is generated by the inheritance process, it regulates inheritance in some circumstances through both prescriptive and proscriptive restrictions of freedom of disposition. Prescriptive restrictions are rules that require donors to distribute property in certain ways thereby preventing them from transferring property to other donees. By contrast, proscriptive restrictions are rules that directly limit freedom of disposition by prohibiting donors from distributing property in particular ways. Scholars have catalogued the various ways that the law regulates inheritance; however, they typically examine them in isolation without developing an overarching framework for analyzing inheritance regulation.
To better understand the role that inheritance regulation plays within the law of succession, this Article analyzes restrictions of freedom of disposition in relation to the law’s social welfare goals. It does so both by recognizing defects in the donor’s decision-making process that suggest she might make suboptimal estate planning decisions and by identifying potentially socially detrimental incentives that freedom of disposition can produce. It then explores how particular restrictions of freedom of disposition address these social welfare concerns. Ultimately, this analysis explains how inheritance regulation can maximize social welfare and develops a framework that can aid policymakers in deciding when inheritance regulation is appropriate and how such regulation should be crafted
Carried Interest and Beyond: The Nature of Private Equity Investment and Its International Tax Implications
Get PDFPrivate equity funds (PEFs) eliminate entity-level taxation by using pass-through entities. They further minimize their investors’ tax liability by taking the position that profits distributed to both general partners (GPs) and limited partners (LPs) are passive portfolio investment income and taxed preferentially. The taxation of carried interest at low capital gains rates is likely the most infamous loophole. This article challenges such tax position and instead argues that the nature of PEF investment is active. PEFs seek to influence their portfolio companies to increase their value so that they actively manage the companies by acquiring at least 10% of their stock, which does not conceptually accord with portfolio investments. The proposed theory that PEFs are active is further supported by recent proposals on carried interest as well as cases and rulings holding that PEFs are involved in a “trade or business.”
This article also considers international tax implications of the new theory: it switches the primary tax jurisdiction to levy tax on PEFs’ crossborder income. This change may be justified for GPs who erode the tax base of a source country, but less justified for LPs because of their genuinely passive involvement, notwithstanding that LPs’ tax-exempt or nonresident status enables GPs’ abusive activities. Finally, determining the true nature of PEF investment and reforming PEF tax accordingly would increase worldwide revenue without significantly reducing the revenue of traditional residence countries, because the traditional residence countries, such as the United States, are also major source countries in the PEF industry
The Global Standards Wars: Patent and Competition Disputes in North America, Europe and Asia
Get PDFOver the past decade there has been an increasing number of disputes concerning the enforcement and licensing of patents covering technical standards. These disputes have taken on a global character and often involve litigation in North America, Europe and Asia. And while many of the parties are the same in actions around the world, courts and governmental agencies in different jurisdictions have begun to develop distinctive approaches to some of these issues. Thus, while areas of convergence exist, national laws differ on important issues including the availability of injunctive relief for FRAND-encumbered SEPs, the appropriate method for calculating FRAND royalties, the competition implications of violating a FRAND commitment, and the contours of the FRAND non-discrimination obligation. Thus, at least until greater international harmonization is achieved, firms doing business globally must remain particularly attuned to the evolving legal landscape in this area. This paper presents a brief overview of recent disputes that have arisen around the world with respect to the acquisition, enforcement and licensing of patents that are essential to technical interoperability standards