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The Lochneress Monster: The Evolving Fear of Lochnerism and its Continued Value for American Jurisprudence
Get PDFThis Note will canvas the history and legacy of Lochner v. New York, and examine the effect that Lochnerism has had on American judges. It will discuss the Lochneress Monster, a new name for a familiar idea, and it will focus on how Lochnerism is utilized as an argumentative tool. Finally, the Note will discuss the importance of continuing to give Lochnerism the measured apprehension that it deserves
Foreign Investments and Energy Transition in the Netherlands: Balancing Economic and Security Interests
Get PDFAffordability, competitiveness, security of supply, and sustainability are among the goals set for the field of the energy transition for 2030 through 2050. In order to meet these goals, the energy sector of the European Union (EU) will require a continuous inflow of capital, particularly Foreign Direct Investment (FDI). Unfortunately, FDI has raised severe national security concerns in EU Member States, leading to the need to adopt and subsequently revisit the FDI screening framework on the EU level. On a domestic level, several EU Member States, such as the Netherlands, have either strengthened or are considering strengthening their screening mechanisms. States have been screening FDI on national security grounds for decades, but the scope of new mechanisms has dramatically expanded to cover more sectors, transactions, and types of investors. In particular, FDIs that affect energy infrastructure, supply of energy, raw materials, dual-use items, and critical technologies necessary for the energy transition should be subjected to more rigid scrutiny. These regulatory and policy developments might hinder the flow of investments into the energy sector and the advancement of new technologies and thus have implications for the prospects and speed of the energy transition in Europe.
This Article will discuss the overarching question of how states can organize their investment screening mechanisms in a way that balances their national security interests against the need for free flow of FDI to stimulate development of technologies that accelerate the energy transition. This includes a case study of the FDI policy of the Netherlands, one of the major destinations of global FDI. This Article initially distills the principles necessary to balancing competing security and economic interests of host states in the investment law context. Based on such principles, it further examines the extent to which existing regulatory mechanisms in the Netherlands are adequate in addressing security concerns posed by FDI while continuing to attract investments in the energy sector and related technologies. Specifically, this Article aims to identify trends in investment screening in the Netherlands, reflect on their coherence with overarching EU investment policy objectives and the multilateral guidance on a good policy design, and discuss the potential implications of recent regulatory developments for the future of the energy transition in Europe. More broadly, this Article contextualizes the case of the Netherlands within the global movement of tightening control over FDI and explores the relationship between the investment policy of a State, on the one hand, and its objectives to combat climate change and safeguard energy security, on the other
The Decentralised Autonomous Organization: Legal Personality and the Problem of Governance
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The Right Visa at the Right Time: Proposing a Targeted Special Immigrant Visa as a Flexible Tool for Practical Immigration Reform
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Conceptual Overlaps between Investment Protection Standards: Analysis of a Yet Unexplored Systemic Problem of ISDS
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The Business of Human Trafficking: How Combating Human Trafficking From a Commercial and Economic Approach Could Be a Source of Progress
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Corporations\u27 Contracts with ICE Have an Explicit and Implicit Duty to Protect Immigrant Detainees
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Subsequent Remedial Contract Measures: The Case for Applying Rule 407\u27s Bar on Subsequent Remedial Measures in Breach of Contract Claims
Get PDFImagine you are preparing a new insurance coverage agreement for 2020 effective April 1, 2020. One exclusion provision from the 2019 policy in particular stands out to you. It is the microorganism exclusion, which bars coverage for losses “directly or indirectly arising out of or relating to: mold, mildew, fungus, spores, or other microorganisms of any type, nature, or description, including but not limited to any substance whose presence poses an actual or potential threat to human health.” Reviewing this exclusion provision, you believe in light of the COVID-19 pandemic it should be made crystal-clear that it includes viruses. Therefore, you add an exclusion for “losses attributable to any communicable disease, including viruses,” to the new 2020 policy.
As you weather the COVID-19 pandemic, your business begins to experience litigation over your insurance policy. Your policyholders expect the 2019 agreement to cover losses attributable to the COVID-19 pandemic. To support said position, one plaintiff argues your addition of the communicable diseases exclusion in the 2020 policy supports their position that the 2019 policy covers losses attributable to the COVID-19 pandemic. Yet, you know this added language was only meant to clarify future policies, not show that the 2019 policy covered losses attributable to the COVID-19 pandemic. Whether a federal court will admit this evidence depends on the circuit in which it sits.
Federal courts are divided on whether Rule 407, which bars evidence of subsequent remedial measures, applies to modified language in contractual agreements.The majority approach applies Rule 407 to contract cases because such disputes apply under the plain-meaning of Rule 407 and implicate its policy goals. On the other hand, a minority of circuits do not apply Rule 407 to contract cases because Rule 407 is written with tort-based language and the policy goals of Rule 407, such as preventing future injuries, are in their opinion not implicated in contract disputes.
This article argues the majority approach, that Rule 407 applies in breach of contract cases, is the correct application for future courts to apply when tasked with this matter. Following this introductory Part I, this paper proceeds in four parts. Part II introduces the reader to Rule 407 by explaining the Rule’s history, application, and policy goals. Part III explores the split among federal courts regarding Rule 407’s applicability to contract cases. This portion articulates the rationale for both the majority and minority approaches to Rule 407 in breach of contract disputes. Part IV argues for the majority approach. The majority approach applies the plain-meaning approach to Rule 407’s text and fulfills the Rule’s policy objective. Part V displays how the Federal Rules of Evidence could be amended to conclusively adopt the majority approach for all future contract cases in the federal court system