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Communitizing Transnational Regulatory Concerns
No full textThe conventional, rationalist view explains that a state will only assent to international regulation if such regulation directly serves the state’s interest. In contrast, nascent transnational regulatory intermediaries, such as the World Trade Organization’s (WTO) Technical Barriers to Trade (TBT) Committee, seek to ameliorate such parochial state interests through a broader interstate dialogue. This Article addresses the challenging question of whether these intermediaries have any meaningful effect on the resolution of interstate trade disputes. To examine this question, this Article utilizes data from over 400 examples of “specific trade concerns” (STCs) raised by WTO members in the TBT Committee. Our statistical analysis demonstrates that confrontational (legal) inquiries, as opposed to inquiries seeking clarification, regarding members’ technical regulations tend to reduce the likelihood of the resolution of underlying disputes. Our findings suggest that the way regulatory problems are discussed, and thus communitized, affects the way that parties ultimately reconcile. This Article closes with a call for more qualitative research methods, such as interviewing TBT Committee participants, to further explore the complexities inherent in the new communitized transnational regulatory environment
The Other Securities Regulator: A Case Study in Regulatory Damage
No full textAlthough the Securities and Exchange Commission is the primary securities regulator in the United States, the Department of Labor also engages in “securities regulation.” It does so by virtue of its authority to administer the Employee Retirement Income Security Act (ERISA), the statute that governs the investment of retirement assets. In 2016, the DOL used its securities regulatory authority to adopt a rule that, for the first time, designates securities brokers who provide investment advice to retirement investors as fiduciaries subject to ERISA’s stringent transaction prohibitions. The new rule’s objective is salutary, to be sure. However, this Article shows that, by way of its reformation of many advisers’ relationships with their retirement-investor customers, the “fiduciary rule” imperils retirement investors in ways that are not immediately evident and that other scholars have not noticed. First, the rule promotes a particular investment strategy — namely, passive investing — for all retirement investors, regardless of their individual needs or objectives. Second, as a thought experiment demonstrates, the rule portends a constriction of most retirement investors’ participation in the securities markets and a still-wider gap, in terms of investment opportunities and performance, between these investors and their “sophisticated” counterparts. Despite these difficulties and speculation that the Trump administration would scuttle the rule, moreover, the rule’s effects are likely enduring.Given the damage that the fiduciary rule threatens to inflict on retirement investors, the DOL’s adoption of it is an episode of failed rulemaking — one that, as this Article contends, may be traced to doctrinal factors: U.S. securities regulation is based on the notion that regulation should be neutral as among firms’ business and financial objectives and should harness, without necessarily abolishing, financial professionals’ conflicts of interest. Yet with its fiduciary rule, the DOL has effectively forsaken the principle of neutrality and deployed a scorched earth strategy against conflicts. With a view toward addressing the special concerns that shared regulatory authority creates, the Article delves into the lessons arising from this episode and how policymakers might better promote regulatory objectives and sound policy going forward
Brief for 72 Professors of Intellectual Property Law as Amici Curiae in Support of Respondents in Oil States Energy v. Greene\u27s Energy
No full textThis is a brief of 72 IP professors opposing the claim in Oil States that the IPR procedure is unconstitutional.Petitioner argues that only a court – indeed, only a jury – has the power to decide that the United States Patent and Trademark Office erred in granting a patent. That argument flies in the face of the history of patent law and this Court’s precedents.Patents are a creature of statute: as early as 1834, this Court specifically recognized that there is no “natural” or common law right to a patent. Rather, under its Article I power to establish a patent system, Congress is charged with determining the contours of the patent grant. Congressional power to establish the terms and conditions of the patent grant includes the power to establish a system for administrative correction of erroneously granted patents.PTAB error correction is also narrow in scope, targeted towards bad patents that district court litigation would not address, and only a modest extension of prior administrative correction proceedings. Moreover, even this narrow scope is subject to significant appellate court control. PTAB review thus addresses the social cost of erroneous patent grants without threatening Article III values.The Seventh Amendment does not compel a different conclusion. While patent infringement cases were tried to juries at common law, both the government and judges retained the power to revoke patents in England and in the early United States. When patent validity questions were considered in American courts throughout history, they were frequently considered by judges, not juries. And court consideration of patent validity issues coexisted with actions by the legislative and executive branches to revoke patents, actions which of course did not require a jury. While this Court need not reach the Seventh Amendment issue in order to dispose of petitioner’s claims, should it reach that issue it should make clear that the Seventh Amendment does not create a right to jury trial on patent validity
Extending Mike Zimmer’s Cross-border Comparative Work: The Role Of Property Rights In U.S. And Canadian Labo(u)r Law
No full textThe Seventh Circuit Justifies Lifetime GPS Monitoring by Calling It Prevention
Get PDFIn 2006, the Wisconsin Legislature enacted a law requiring the lifetime GPS monitoring of serious sex offenders to discourage recidivism. Sexual abuse has devastating consequences on a child, and the crime often goes unreported because children tend to be afraid of their abusers, worried about their parents\u27 reactions, or unable to describe the events. Despite having the best interests of children in mind, these GPS monitoring laws have the potential to infringe upon the constitutional rights of offenders.
In Belleau v. Wall, the Seventh Circuit reviewed Fourth Amendment and Ex Post Facto Clause implications of this statute. Michael Belleau was convicted in 1992 and 1994 for sexually abusing children. After completing his sentences, the State successfully petitioned to place him under civil commitment. When he left the facility in 2010, he became subject to the monitoring statute. If the lifetime GPS tracking was part of his original sentence or a condition of his release, his case would not have made it to the Seventh Circuit. The question in this case was whether the statute violated the Fourth Amendment or the Ex Post Facto Clause of the U.S. Constitution.
The Fourth Amendment only prohibits unreasonable searches. Because convicted sex offenders have diminished expectations of privacy and because they are less likely to repeat their crimes while under monitoring, the Seventh Circuit found that the gain to society outweighed the inconvenience to convicts like Belleau. The prohibition of the Ex Post Facto Clause was more difficult to overcome. The Wisconsin Legislature passed the monitoring statute nearly twenty years after Belleau had committed his last offense. No one disputed that the law applied to Belleau retroactively. However, the retroactive application is only prohibited if the statute imposes new or additional punishment. To avoid this limitation, the Seventh Circuit labeled the GPS monitoring program prevention as opposed to punishment.
This Article reviews the procedural history of Belleau v. Wall and how other circuits dealt with similar statutes. The Supreme Court suggested that lifetime monitoring of serious sex offenders might be reasonable under the Fourth Amendment, however, the Court did not address whether retroactive application was permissible. As several states disagree on the ex post facto implications of these statutes, the pressure is mounting on the Supreme Court to weigh in with an opinion
Plain Error Review Is Just Plain Confusing: How the Confused State of Plain Error Review Led the Seventh Circuit to Get It Wrong
Get PDFNormally, if a defendant fails to make a timely objection to a perceived error during trial, he forfeits his right to appeal the error. Federal Rule of Criminal Procedure 52(b) however, allows for an exception to this general rule. Rule 52(b) is a codification of a common law standard which allowed a court to address an error not timely objected to. This type of appellate review is known as plain error review. The original standard, which Rule 52(b) is based on came from United States v. Atkinson. The United States Supreme Court in Atkinson stated that courts, in the public interest, held discretion to correct an error which had been forfeited by a defendant when the error was obvious or it otherwise seriously affected the fairness, integrity or public reputation of judicial proceedings. This standard was grounded in a concern for the public\u27s faith in the integrity of the judicial system.
In the last thirty years, the United States Supreme Court has strayed from the principles embodied Atkinson and has created a different plain error standard. The current plain error review paradigm was postulated in United States v. Olano, and consists of a four-part conjunctive test focusing heavily on actual prejudice suffered by a defendant caused by the error. This test is complicated, which has led to inconsistent holdings and various dissents on the correct application of plain error review. In United States v. Resnick, the prosecution used the defendant\u27s refusal to submit to a polygraph as substantive evidence of his guilt. Because the defense did not timely object to this, the Seventh Circuit applied plain error review. After applying the Olano test, the court concluded that there had been no plain error committed by the district court.
The confused state of the plain error doctrine led the Seventh Circuit to wrongly decide Resnick. In addition to ignoring the egregiousness of the constitutional violation, the court erroneously required that the appellant show that the error had actually affected the outcome of his trial. In making this showing of actual prejudice a dispositive factor, the court failed to account for any injury to the integrity of the judicial system the constitutional error might cause. In order to maintain the public\u27s faith in tribunal proceedings, the doctrine must be revised to look beyond any damage an uncorrected error may cause an individual. Instead, plain error analysis must also account for injuries to the fabric of our judicial system
Reforming the Processes for Challenging Voluntary Acknowledgments of Paternity
Get PDFVoluntary acknowledgements of paternity (VAPs) significantly determine male legal parentage at birth for many children born of sex to unwed mothers in the United States. VAP processes are chiefly dictated by the federal Social Security Act, which places certain mandates on states participating in federally-subsidized welfare programs. These processes include norms on effective VAP establishments and on VAP disestablishments, either via early rescissions (within sixty days) by signatories or via later contests (after sixty days) by challengers, including signatories. The norms are driven by the Act’s desire to increase reimbursements of state child welfare payments from unwed fathers regardless of whether the fathers are childrearing.
These VAP processes are significantly employed by states for all children of unwed parents, regardless of any welfare assistance, and for childcare as well as child support purposes. Such uses create tensions since legal parentage often has nothing to do with welfare. Further, as to VAP contests, notwithstanding the Act’s promotion of uniform norms, there are significant variations in American state laws. Differences on VAP contests arise regarding who may challenge; what proof is required for an effective challenge; and what time limits exist for any challenge. These variations can prompt troubling results which should be mitigated through reforms of VAP challenge processes undertaken at the federal level.
Because parentage establishments and contests are usually undertaken with no focus on welfare reimbursement and much focus on the childcare interests of parents and the wellbeing of children, American states should create separate parental acknowledgment processes operating outside of the Social Security Act. Such processes, at a minimum, should allow acknowledgments by alleged parents who claim to have met state de facto (and comparable) parent standards, including both men and women. Deemphasizing welfare reimbursements, and emphasizing child wellbeing, will better ensure that beneficial (if not constitutionally protected) parent-child relations continue