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When Bigger Is Better: A Critique of the Herfindahl-Hirschman Index’s Use to Evaluate Mergers in Network Industries

Tue, 09/09/2014 - 19:29

This Article argues that the current framework used by the Department of Justice (“DOJ”) and Federal Trade Commission (“FTC”) to evaluate mergers is inadequate in that it fails to account for network benefits. In particular, I argue for abandoning the use of the HHI in analyzing network industry mergers because the index generates little useful information about these mergers’ effect on consumer welfare. Part II describes the HHI’s historical and theoretical underpinnings and its integration into the current Merger Guidelines. Part III considers general objections to the HHI before turning to its problems in evaluating network industries. Part IV presents a formal model for evaluating the effects of mergers in network industries. Part V proposes an alternative framework for merger analysis to account for network effects. Part VI concludes.

Categories: Books

The Right to Travel: Breaking Down the Thousand Petty Fortresses of State Self-Deportation Laws

Tue, 09/09/2014 - 19:29

Part I of this Article discusses the limitation of the pre-emption doctrine on state self-deportation laws. Part II discusses a short history of the Supreme Court’s application of the right to travel. Part III explains why the lack of federal authorization or immigrant status does not exclude people from the right to travel’s protection. Part IV discusses how the right to travel relates to citizenship and how the undocumented may exercise what has been described as a privilege or immunity of citizenship. Finally, Part V examines how the current state-based “self-deportation” immigration laws violate the right to travel.

Categories: Books

Intra-group Diversity in Education: What If Abigail Fisher Were an Immigrant . . .

Tue, 09/09/2014 - 19:29

In Part I, this Article briefly describes some aspects of white immigrants’ educational experience (including extracurricular involvement and parental roles), exposing how it reflects immigrants’ lack of access to the cultural capital of native-born whites. The Article exposes some unique challenges faced by Caucasian immigrants in high school, during the college application process, and in taking advantage of college opportunities that amplify social benefits. These experiences are contrasted with those of American-born students who benefit from their families’ access to social capital that enables them to take advantage of its replication in college.

Part II addresses how some of the challenges white immigrants face in the educational context can be reduced. It then proposes some institutional programs and interventions in high school and in college. A more holistic and nuanced approach to admissions preferences is then proposed, compatible with the goals of increasing intra-group diversity per Fisher.

The Article concludes by calling for greater attention to diversity within racial categories and to commonalities among various groups that do not fit the norm. Ultimately, noting such similarities will lead to a greater visibility and inclusion of the contemporary immigrant experience. In a country where one out of four children is or has an immigrant parent, this approach will add to the richness of what it means to be an “American” for all of us, paving the way to a more integrated society and a more meaningful democracy.

Categories: Books

The Exceptional Absence of Human Rights as a Principle in American Law

Tue, 09/09/2014 - 19:29

This Article examines legal, political, sociological, and historical factors behind the limited weight of human rights as a domestic principle in America. This absence is particularly remarkable given the prevalence of “exceptionalist” practices raising fundamental humanitarian issues. The United States notably has by far the highest incarceration rate worldwide; is the only Western democracy to retain the death penalty; and has openly tortured alleged terrorists. In addition, America is the sole Western nation to lack universal health care, which is essentially considered a human right elsewhere in the West.

Finally, the Article explores the societal implications of the issue. Americans seldom invoke “human rights,” yet many invoke “civil rights,” “constitutional rights,” “fairness,” “equality,” or “due process of law” when denouncing practices that would be identified as human rights abuses elsewhere in the West. The difference between these concepts and human rights is sometimes semantic, albeit not always. The substantive scope of certain human rights goes beyond rights under domestic U.S. law. Human rights also have greater trenchancy than these other concepts in barring practices like the death penalty and torture. Americans opposed to these practices frequently advance procedural concerns (e.g., the death penalty is applied discriminatorily against minorities and erroneously against innocents) or utilitarian arguments (e.g., torture is counter-productive). While these points have merit, they do not necessarily lead to the conclusion that such practices should be categorically abolished. Human rights, by contrast, are inalienable. Their limited weight as a principle in contemporary American law is all the more striking given that the United States has made substantial contributions to the development of individual rights ever since they became the first modern democracy to emerge from the Enlightenment in the 18th century.

Categories: Books

“Standing” in the Shadow of Erie: Federalism in the Balance in Hollingsworth v. Perry

Tue, 09/09/2014 - 19:29

This Article provides an insight into the Court’s divergent views on the federal standing issue in Hollingsworth by viewing the Justices’ conflicting positions through the lens of the Court’s Erie jurisprudence, which, at its core, focuses on calibrating the proper judicial balance of power in a given case between conflicting federal and state interests in determining vertical choice-of-law issues. Hollingsworth is uniquely positioned at the intersection of federal standing principles and Erie doctrine, confronting the Court with competing balance of power concerns inherent in our federal system. Standing, as a requirement for the limited exercise of federal judicial power under Article III, addresses the horizontal balance of power among the three branches of the federal government. Erie addresses the vertical balance of power between federal and state courts. Standing is a malleable doctrine that federal courts have employed to avoid ruling —prematurely in the case of same-sex marriage—on the merits of a controversial issue. This Article employs Erie doctrine to critically assess whether a closely divided Supreme Court in Hollingsworth correctly privileged the horizontal balance of power concerns at the expense of the vertical ones.

Categories: Books

Global Cyber Intermediary Liability: A Legal & Cultural Strategy

Tue, 09/09/2014 - 19:29

This Article fills the gap in the debate on fighting cybercrime. It considers the role of intermediaries and the legal and cultural strategies that countries may adopt. Part II.A of this Article examines the critical role of intermediaries in cybercrime. It shows that the intermediaries’ active participation by facilitating the transmission of cybercrime traffic removes a significant barrier for individual perpetrators. Part II.B offers a brief overview of legal efforts to combat cybercrime, and examines the legal liability of intermediaries in both the civil and criminal context and in varying legal regimes with an emphasis on ISPs. Aside from some level of injunctive relief, intermediaries operate in a largely unregulated environment. Part III looks at what we can learn from other countries. The cleanest intermediary country, Finland, and the worst country, Lithuania, were selected in order to explore the causes for the differences between country performances. The section examines the remarkable distinctions between national cultures to explain differences in national cybercrime rates.

Part III.A of this Article argues that the criminal code laws do not account for the difference in host and ISP performances between Finland and Lithuania. There are few differences in the codified laws pertaining to cybercrime between these countries. Instead, it is Finland’s cultural and business environments that appear to drive its cybercrime ranking. Part IV suggests reforms to shift a country’s culture to make it less prone to corruption. However, changing a culture takes time so Part IV also proposes a private law scheme in which intermediaries are unable to wave the “flag of immunity,” as they do now. The guiding philosophy for this proposal is that harmed parties should be permitted to recover damages directly from “bad” intermediaries.

Categories: Books

The Improbability of Positivism

Tue, 09/09/2014 - 19:29

Ronald Dworkin’s contributions to legal philosophy have been subject to severe criticism in recent years. Other legal philosophers call his arguments “deflected or discredited,” laced with “philosophical confusions,” and “deeply embedded” mistakes. As Brian Leiter writes, “[t]he only good news in the story about Dworkin’s impact on law and philosophy is that most of the field declined to follow the Dworkinian path . . . .”

This Article endeavors to show that, far from an effort beset with primitive errors, Dworkin’s challenge to legal positivism in the opening pages of his seminal work was neither misguided nor trivial. Rather, Dworkin’s challenge remains as important and thought-provoking today as it was when he first set it down. His challenge, though straightforward, has never been satisfactorily answered. Rather than grapple with Dworkin’s argument, legal philosophers have either misunderstood or trivialized his insights in the decades since. But there is a reason H.L.A. Hart, one of Dworkin’s examiners at Oxford, saved his jurisprudence examination before ever having reason to believe that Dworkin would become the primary opponent to legal positivism. Hart’s challenge—the argument from theoretical disagreement—still burns bright nearly a quarter-century on.

Furthermore, this Article seeks to explain why legal positivism’s inability to preserve the face value of theoretical disagreement makes it improbable that legal positivism offers an adequate descriptive account of the nature of law. It also endeavors to outline why this deficiency is so immensely important. To accept the legitimacy of theoretical disagreement is accept that to know what the law is one must know something about the moral and political culture in which that law resides.

Categories: Books

Tribes and Race: The Court’s Missed Opportunity in Adoptive Couple v. Baby Girl

Tue, 09/09/2014 - 19:29

Part I of this article will provide an overview of the legal doctrines implicated in Adoptive Couple v. Baby Girl. First, Part I will discuss both Indian Child Welfare Act’s text and purpose and scholarly attention given to the law. Second, Part I will examine the law of putative fathers insofar as relevant to understanding ICWA’s application in Adoptive Couple. Part II provides insight into the Court’s equal protection jurisprudence with a particular emphasis on considerations of race in adoption and laws implicating Indian tribes. This Part introduces the limited scholarly treatment afforded to the equal protection issues implicated by ICWA and builds on the existing work that recognizes the inherently racial nature of any tribal classification. Part III tells the intriguing story of Adoptive Couple by providing a factual overview of the case, presenting the procedural history of the dispute, and summarizing the parties’ arguments before the Supreme Court. Lastly, Part IV analyzes the Court’s decision in Adoptive Couple. Incorporating the themes developed throughout this Article, Part IV critically examines the Court’s failure to resolve the putative father and equal protection issues raised in Adoptive Couple. Part IV suggests how the Court should have resolved Adoptive Couple in a constitutionally and doctrinally satisfying way while identifying some of the perils and repercussions of the Court’s judicial minimalism. This Part also includes a brief epilogue that provides an update to the status of Baby Girl’s adoption.

Categories: Books