In March of 2010, President Barack Obama signed into law the Patient Protection and Affordable Care Act (commonly referred to as the health care reform law and hereinafter as the “Affordable Care Act” or “PPACA”). Despite its stated dual intent to increase health insurance access and reduce health care costs for Americans, PPACA has evoked intense protests, threats of repeal, and prolonged litigation. Indeed, the United States Courts of Appeals for the Third, Fourth, Fifth, Sixth, Eighth, Ninth, Eleventh, and D.C. Circuits, as well as several federal district courts, considered the constitutionality of PPACA. As the circuits split, the U.S. Supreme Court weighed in this past summer with a controversial 5-4 decision, upholding the constitutionality of PPACA’s “individual mandate,” which is scheduled to take effect on January 1, 2014.
Enforcing Self-Regulatory Organization’s Penalties and the Nature of Self-Regulation
Few issues are as poorly understood and under-theorized as the concept of “industry self-regulation.” The Second Circuit recently raised important issues about the nature of such self-regulations when it held that the industry’s self-regulatory agency, the Financial Industry Regulatory Authority (“FINRA”), lacked the authority to judicially enforce the fines it levies against member broker-dealers. In this Article we provide a theoretical framework for understanding the nature of self-regulation and then discuss the role of courts in effectuating the self-regulatory process. Our thesis is simple: the success of industry self-regulation critically depends on the market power of the firms in the self-regulatory organization (“SRO”). If the firms have market power, then as long as the industry generates profits for members, self-regulation can work. But if either profitability or market power decline, self-regulation will fail. We believe that our analysis leads to a deeper understanding of the appropriate relationship between self-regulatory agencies and the judiciary, where the issue is whether and to what extent a self-regulatory organization can invoke the power of the courts to enforce its rules and disciplinary decisions.
The Gamification of Work
Ender’s Game and its element of attack by a hostile alien species are, thankfully, wholly within the realm of science fiction. However, the idea that people could be working while they play a video game—in some instances without even knowing that they are working—is becoming part of our reality. In the language of cyberspace, introducing elements of play and gaming into non-game situations is known as the process of “gamification.” Gamification is an important element of what in previous writing I have termed “virtual work,” that is, work taking place at the intersection of the Internet, crowdsourcing arrangements, and virtual worlds. Virtual work is part of a broader transformation of work from assembly lines to knowledge and information. Indeed, in her book From Widgets to Digits, Katherine Van Wezel Stone documents how the manufacturing economy is increasingly giving way to work based on knowledge work. Professor Stone insightfully catalogues these systemic changes. Gamification, like some other forms of virtual work, blurs the line between “work” and “leisure.” The gamification of work is a growing trend with important implications for employment law. Analyzing this topic will help us make sensible choices about regulation (or the lack thereof) of these new forms of work.
A Prescription for Excess: Using Prescriptive Comity to Limit the Extraterritorial Reach of the Sherman Act
The United States aggressively pursues antitrust violations perpetrated by foreign defendants. Of the fines collected by the Department of Justice (“DOJ”) for Sherman Act violations, eighteen of the twenty largest fines have been levied against foreign corporations. Private plaintiffs, too, are able to bring private rights of action against foreign corporations under the Sherman Act. Courts adjudicate these matters involving wholly foreign conduct and parties by applying the Sherman Act extraterritorially.
The extraterritorial application of the Sherman Act has vexed courts for decades. There has been sharp disagreement among jurists as to how U.S. courts ought to apply U.S. antitrust laws abroad. As a general matter, the Sherman Act can apply extraterritorially to foreign conduct if that conduct produces substantial effects inside the United States. The Supreme Court has established judicial rules about the extraterritorial application of the Sherman Act that do not provide predictive guidance or protection for foreign defendants. The result is that foreign defendants cannot know with sufficient certainty whether their wholly foreign actions will lead either to a civil lawsuit or criminal prosecution in U.S. courts. Further, the extraterritorial application of the Sherman Act has negatively impacted foreign relations between the United States and its closest trading partners.
Intervention of Right in Judicial Proceedings to Review Informal Federal Rulemakings
The codification of the Federal Rules of Civil Procedure in 1938 (the “Federal Rules”) created not only a more transactional approach to litigation, but also the flexible party structure that was necessary for “public law litigation” to flourish. Indeed, many argue that intervention by non-parties in public law cases is essential to ensure that the court can hear from and protect the wide range of interests likely to be impacted by its decision. This Article seeks to make a case for limiting intervention as of right in a specific subset of public law proceedings–– those brought to review the legality of informal federal rulemakings pursuant to the Administrative Procedure Act (“APA” or the “Act”). The courts in these cases are placed in a difficult position in considering applications to intervene. On one hand, given the narrow scope of judicial review it is unclear how a court will benefit from the addition of defendant-intervenors seeking to uphold the administrative rule. Instead the court faces the likelihood of information overload and/or information degradation as defendant-intervenors incorporate duplicative or irrelevant arguments into the proceedings. On the other hand, when a court chooses to deny such intervention, it creates the possibility of a lengthy appeal that will further delay judicial review. In sum, intervention practice under the Federal Rules harms the rights of those entitled to judicial review of an agency rulemaking and, most importantly, negatively impacts the public as a whole by reducing the efficiency of the administrative rulemaking process. As such, this Article argues that the practice is inconsistent with both the APA and the intent of third-party practice under the Federal Rules.
The Rise of Institutional Law Practice
For generations, the legal profession has assumed that only individual lawyers practice law. Ethical standards have been largely, if not exclusively, directed at individuals, and practice organizations have been regulated to prevent limiting individual lawyer professional judgment. The world in which lawyers now practice makes the individualized model obsolete. The complexity of modern law narrows the breadth of any individual lawyer’s practice and makes law firms and other practice organizations inevitable. Firms, in turn, must maintain both ethical compliance and a high level of service quality that is inconsistent with lawyers behaving idiosyncratically. This Article explores these developments and suggests changes in the rules governing lawyer conduct needed to respond to the possibilities and problems the developments create.
Faulkner’s Voting Rights Act: The Sound and Fury of Section Five
In its most recent examination of the Voting Rights Act (the “VRA”), the Supreme Court told a story about the South. Although the Court ultimately did not rule on the continued constitutionality of section 5, the VRA provision that singles out certain jurisdictions with a history of racially discriminatory voting practices for additional regulation, its opinion expressed significant doubt that the measure was still justified. In this tale of progress and redemption, the Court concluded that “[t]hings have changed in the South.” One body of commentary that was not considered in this story was the region’s literature. Yet many of these works, in particular the novels of William Faulkner, address some of the same thematic and sociological concerns that animate section 5. Specifically, Faulkner’s novels explore the power of memory in the South and the ongoing influence of the past on present actions and attitudes. In his depiction of the burden of memory, Faulkner suggests a distinct role for section 5 that policymakers and commentators should consider in the debate over its continued necessity. Rather than punishing the sons for the sins of the fathers, the provision can be seen as targeting the independent concern of a past-haunted society and the uncertain results which the unchecked power of memory can produce in the present. This Article explores how Faulkner’s novels can contribute to a better understanding of the role section 5 serves in the modern South and thus inform the debate over whether the law remains constitutional. In doing so, it also considers the role literature can play in legal analysis beyond the uses typically identified by the law and literature movement.
Trix Are Not Just For Kids: The Supreme Court’s Clumsy Handling of the Public-Private Distinction and its Legislative Impact on Breakfast and Beyond
“Silly Rabbit, Trix are for kids.” It is more than just a slogan: General Mills believes it is constitutionally protected speech under the First Amendment. But if Trix are for kids, recent Supreme Court decisions granting expansive constitutional protections to corporations are for adults. As a result, General Mills’s claim is less absurd than it would have seemed a generation ago. These decisions will continue to distort First Amendment doctrine in this fashion unless legislators and the Supreme Court embrace an understanding of the public-private distinction that better reflects the values of the U.S. Constitution.
Sanctioning Insurance Carriers for Bad-faith Litigation Practices: a Proposal to Change the “Named Party” Rule
It was three days before Christmas in 1996. Earnest and Eleanor Brown, a retired couple from Shinnston, West Virginia, were driving on the freeway. The retired couple had twenty-two children, seventeen of whom were adopted, many of them with special needs. As they were driving home, a drunken man in a Mustang swerved into their lane and collided with their car. As a result of the accident, Mr. Brown suffered a concussion and Mrs. Brown seriously fractured her ankle, leaving doctors with doubt as to whether she would ever be able to walk again. Eleanor Brown’s ankle was eventually held together with “a plate, two screws and three wires.”
Asylum and Oral Argument: The Judiciary in Immigration and the Second Circuit Non-argument Calendar
Saidou Dia, a native of the Republic of Guinea, and Marwan Youssef Albathani, a Lebanese national, have likely never met. Both men were born in their native countries in the 1970s, both men were politically active in their native countries, and the lives of both of these men have sourced a major turning point in United States asylum law.
