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Civil Servant Alarm
Get PDFCivil servants have long resisted presidential immigration policies. However, bureaucratic by superiors, retaliation against resistance is the norm under the current dministration, despite the fact that this resistance has resulted from principled “dissonance” between civil servants’ understanding of their core responsibilities and the priorities emphasized by new political directives. Rather than condemnation, however, frequent incidents of resistance from divergent factions of the immigration bureaucracy, particularly if met with a harsh response from the President, should be characterized as a “fire alarm” imploring a congressional response
Response to Professor Farber\u27s Regulatory Review in Anti-Regulatory Times
Get PDFThis is a response to an article by Professor Dan Farber presented in a symposium about the Trump Administration and Administrative Law at the Chicago-Kent College of Law. After agreeing with Professor Farber’s description, analysis and critique of the Trump Administration’s use and abuse of cost-benefit analysis (CBA) as an aid in making regulatory decisions, Professor Pierce makes four points: (1) President Trump will fail to implement his deregulatory agenda; (2) the Environmental Protection Agency’s (EPA) proposed rule on transparency of scientific evidence is a good start on an important project; (3) the Clean Power Plan is a lost cause; and (4) The Trump Administration may unintentionally end the practice of applying cost-benefit analysis to regulatory decisions
Tripping Over the EU Trade Secret Directive: Reasonable Steps to Get Back on Track
Get PDFTrade secrets are a crucial tool for global firms today, including those that do business within the European Union (“EU”). The 2016 European Union Trade Secret Directive (“Directive”) attempted to establish uniform trade secret protection across all twenty-eight EU Member States but created problems in its wake. In particular, the Directive put no restrictions on whether Member States could specify certain “reasonable steps” that businesses must take in order to be afforded trade secret protection. This Article argues that Member States should be required to follow the trade secret definition laid out in Article 2 of the Directive and not be allowed to implement specific heightened criteria for the “reasonable steps” prong. This approach would allow trade secret protection among all Member States to remain fair and predictable for businesses that practice within any of the individual States and would better ensure that the Directive accomplish its stated purpose
Vol. 37, No. 3
Get PDFA Statement of Facts: The Reality of Public Safety Employee Pension Funds in the State of Illinois
Recent Developmentshttps://scholarship.kentlaw.iit.edu/iperr/1115/thumbnail.jp
Betting On The Safety Act: How Relying On This Relatively Unknown Statute In Recent Litigation May Be A Gamble
Get PDFDemocracy, Federalism, and the Guarantee Clause
No full textThe Guarantee Clause of the Constitution promises that “[t]he United States shall guarantee to every State in this Union a Republican form of Government . . . .” The Supreme Court has long held this Clause to be nonjusticiable, and as a result, many see the Clause as purely vestigial. But nonjusticiable does not mean toothless, and this view fails to recognize the Clause’s grant of power to Congress. The Guarantee Clause provides Congress with the authority to ensure that each state’s internal governance meets a minimum standard of republicanism. The Framers included this promise because they feared that some forms of government, such as monarchy, were incompatible with republicanism, which they understood as representative self-government. Nonrepublican government in one state, they believed, might have deleterious or even dangerous effects on other states, and protection against nonrepublican government was thus essential for long-lasting and healthy interstate and federal–state relationships. Today, the Framers’ fears appear prescient as a number of states engage in tactics like extreme partisan gerrymandering , which entrenches one party in power; lame-duck legislation, which reallocates power to undermine an incoming administration; and targeted burdens on voting. These tactics parallel the types of democratic erosion that scholars have observed internationally and historically. Moreover, the potential negative effects of these antidemocratic tactics from one state to another, and from one state to the nation as a whole, are substantial and threaten to undermine many of the benefits of federalism. Fortunately, the Guarantee Clause allows — indeed, requires—Congress to address these antidemocratic state-level practices
Author Response to Symposium: What Does it Mean to Consent?
No full textI am grateful to the Loyola Law Review for publishing this symposium issue on my book, Consentability: Consent and Its Limits. The contributors to this issue are all prominent scholars who have wrestled with the issue of consent and autonomy in their respective fields, and this symposium is an invaluable opportunity to engage with them on these topics. I thank each of them for their insights and their helpful comments and criticisms. I also thank Danielle Kie Hart for conceiving of and thoughtfully organizing the symposium issue, Brian Bix for writing the incisive and comprehensive foreword, and the members of the Loyola Law Review for their careful work editing this symposium issue. It has truly been a pleasure and an honor.This book project first started as a way for me to understand why the law permits individuals to consent to some activities but not others. This captures one of the two meanings of the term “consentability.” The first meaning refers to legality. Certain acts are simply not permitted and so one is not allowed to consent to them. These activities include paid sex work and selling one’s organs. But the question of legality or legal permissibility is tied to the second meaning of consentability, that of possibility. Some acts are not legal because it seems unlikely that anyone could or would actually want to consent to them. The nature of the act itself makes us question the validity of the consent. We believe that something went awry in the decision-making process—that there was some type of coercion involved, a lack of information about what the activity entailed, or some other defect in the decision- making process. We suspect, in other words, that given what the activity entails, nobody would really want to participate. This, however, raises the question—what does it mean to consent? My book proposes a framework for evaluating consentability that recognizes the integrality of consent
Revisiting the License v. Sale Conundrum
No full textThis Article seeks to answer a question that has become increasingly more important as commerce moves from the tangible to the intangible - to what extent may a business use a contract to control the use of a fully paid product? The characterization of a transaction as a license or a sale determines what may be done with a product, who controls how the product may be used, and what happens in the event of a dispute. The past generation has seen a seismic shift in the way businesses distribute their products to consumers. Businesses often “license” rather than “sell” their products, and view consumers as licensees, rather than owners, of the products they buy. Customers own their copies of books, movies, and music but merely license the same content when they purchase it in digital form. The marketplace transition from sale to license has far and wide ripple effects affecting a range of issues from innovation to the environment. The rapid emergence of the Internet of Things adds to the urgency and importance of the question – are goods licensed or sold?The question of whether a digital product is licensed or sold is often conflated with the question of whether a product should be licensed or sold. The problem lies, in large part, with contract law which has taken a well-intentioned but misguided turn away from the intent of the parties and toward a narrow vision of efficiency. When it comes to commercial transactions, the narrow efficiency view prioritizes quantity of completed transactions over quality, ignoring consumer expectations and the way distrust creates uncertainty in the marketplace. This Article proposes a methodology for resolving the license v. sale conundrum that promotes a more expansive view of efficiency and brings more predictability and fairness to an increasingly muddled area of the law