Law Commons^™

When Does F*** Not Mean F***?: Fcc V. Fox Television Stations And A Call For Protecting Emotive Speech, W. Wat Hopkins

Federal Communications Law Journal

The Supreme Court of the United States does not always deal cogently with nontraditional language. The most recent example is FCC v. Fox Television Stations, in which the Justices became sidetracked into attempting to define the f-word and then to determine whether, when used as a fleeting expletive rather than repeatedly, the word is indecent for broadcast purposes. The Court would do well to avoid definitions and heed Justice John Marshall Harlan's advice in Cohen v. California to provide protection for the emotive, as well as the cognitive, element of speech

Masthead Vol.64 No.1 (2011)

Federal Communications Law Journal

No abstract provided.

Editor's Note, Sarah L. Kellogg

Federal Communications Law Journal

No abstract provided.

Putting A Price On Dirt: The Need For Better-Defined Limits On Government Fees For Use Of The Public Right-Of- Way Under Section 253 Of The Telecommunications Act Of 1996, Thomas W. Snyder, William Fitzsimmons

Federal Communications Law Journal

This Article addresses the enactment and inconsistent application of Section 253 of Telecommunications Act of 1996 ("FTA"). Most courts initially held that Section 253 imposed strong limitations on local governments seeking to charge fees to telecommunications carriers for use of the public rights-of-way ("PROW') by generally limiting the fees to management costs. Unfortunately, recent cases allowed local governments broad latitude in charging PROW fees to generate revenue, even where the fees are used to subsidize other government services. These "revenue-generating" fees are dangerous to the development of competition and the deployment of Internet services, which were the two primary goals …

Antitrust Review Of The At&T/Tmobile Transaction, Allen P. Grunes, Maurice E. Stucke

Federal Communications Law Journal

In August 2011, the United States brought a landmark antitrust lawsuit to prevent the merger of two of the nation's four largest mobile wireless telecommunications services providers, AT&T Inc. and T-Mobile USA, Inc. But why are so many elected officials asking the Obama administration to intercede in the Department of Justice's lawsuit to force a settlement? Why are they approving a merger that would likely lead to higher prices, fewer jobs, less innovation, and higher taxes for their constituents? Does it have anything to do with the money they are receiving from AT&T and T-Mobile? This Article examines the recent …

Spectrum Reallocation And The National Broadband Plan, Jeffrey A. Eisenach

Federal Communications Law Journal

Of the several significant changes in United States telecommunications policy proposed by the National Broadband Plan, none are more substantial than its proposals for spectrum policy. In particular, the Plan proposes to reallocate 500 MHz of spectrum from broadcast television, mobile satellite, government and other current uses to "mobile broadband" through the use of innovative "incentive auctions" and other voluntary, market-oriented mechanisms. The Plan's spectrum proposals have the potential to be a major step forward in the decades-long, bipartisan effort to replace "command-and-control" spectrum allocation with a more flexible, dynamic and market-oriented approach. Considerable work remains to be done, however, …

Statewide Cable Franchising: Expand Nationwide Or Cut The Cord?, James G. Parker

Federal Communications Law Journal

In the name of increasing competition in the cable television market, Congress passed the Telecommunications Act of 1996. While this eliminated the barriers to entry using federal law, it did not change the nature of municipality-based cable system monopolies. In an effort to expand competition more quickly and efficiently, the phone companies (Verizon and AT&T) successfully supported legislation in at least twenty-five states that permits a single state application to compete statewide. This Note explores the varying approaches taken in the laws passed to date, analyzes the outcomes flowing from those implemented plans, and provides recommendations of the best practices …

Are You Ready For Some Football?: How Antitrust Laws Can Be Used To Break Up Directv's Exclusive Right To Telecast Nfl's Sunday Ticket Package, Ariel Y. Bublick

Federal Communications Law Journal

There is almost no question that football has become modem America's pastime. Football has never been more popular, and every Sunday people are clamoring to watch as many games as possible. The Sunday Ticket package allows viewers to watch any National Football League ("NFL") game being played at any given time. However, the NFL has only granted DirecTV the right to air the Sunday Ticket package, denying this excellent service to a majority of television viewers. By limiting the reach of the Sunday Ticket package, the NFL may be in violation of antitrust laws. This Note begins by explaining antitrust …

The "Strong Medicine" Of The Overbreadth Doctrine: When Statutory Exceptions Are No More Than A Placebo, Christopher A. Pierce

Federal Communications Law Journal

In United States v. Stevens, the United States Supreme Court invalidated a federal statute criminalizing the interstate sale and distribution of depictions of animal cruelty on First Amendment grounds. While Stevens demonstrates the Court's reluctance to create a new category of speech outside of First Amendment protection, Stevens also stands for the proposition that borrowing the exceptions clause from the Court's obscenity standard will not adequately protect a statute from invalidation as overbroad. This Note discusses the use of the obscenity standard's exceptions clause in nonobscenity statutes and the Court's treatment of the exceptions clause in Stevens. This Note concludes …

Regulating On The Fringe: Reexamining The Link Between Fringe Banking And Financial Distress, Jim Hawkins

Indiana Law Journal

Critics of fringe banking—products like payday loans, pawn loans, and rent-toown leases—frequently argue that these products cause borrowers to experience financial distress. This argument has enormous intuitive appeal: Fringe credit is very costly, and usually the borrowers who use it are already in a serious financial bind. Taking on additional debt and paying high prices for it, the reasoning goes, drive them over the brink. Surprisingly, however, linking financial distress to fringe banking is extremely difficult to do. This Article represents the first attempt to uncover the relationship between fringe banking and financial distress by systematically analyzing the structure of …

Saving Seaborn: Ownership Not Marriage As The Basis Of Family Taxation, Dennis J. Ventry Jr

Indiana Law Journal

One of the most famous Supreme Court tax cases celebrated its eightieth birthday last year. In Poe v. Seaborn, the Court reified two principles of the federal income tax: ownership determines tax liability and state law determines ownership. This Article affirms that family taxation continues to follow ownership, not marriage, despite the federal government’s position that the “ownership equals taxability” rule applies almost exclusively to heterosexual spouses. Verifying the vitality of this principle carries significant implications for all families, particularly nontraditional families. Under the aegis of Seaborn, the principle authorizes certain members of state-recognized relationships—marriages, domestic partnerships, civil unions—to file …

Beyond Equality? Against The Universal Turn In Workplace Protection, Jessica A. Clarke

Indiana Law Journal

Sexual harassment law and family leave policy originated as feminist reform projects designed to protect women in the workplace. But many academics now ask whether harassment and leave policies have outgrown their gendered roots. The anti-bullying movement advocates taking the “sexual” out of harassment law to prohibit all forms of on-the-job mistreatment. Likewise, the work-life balance movement advocates taking the “family” out of leave policy to require employers to accommodate all types of life pursuits. These proposals are in line with recent cases and scholarship on civil rights that reframe problems once seen as issues of inequality as deprivations of …

Equal Citizenship And The Individual Right To Vote, Jospeh Fishkin

Indiana Law Journal

An emerging consensus among election law scholars urges courts to break out of “the stagnant discourse of individual rights and competing state interests” and instead adopt a jurisprudence of “structural” democratic values that sidelines individual rights. This structuralist approach won out in the great “rightsstructure” debate in election law, and came to dominate the field, during a period in which the main controversies—vote dilution, gerrymandering, ballot access, campaign finance—were all ones in which the structuralist move was illuminating. However, structuralism is now causing both scholars and courts to evaluate the new wave of vote denial controversies, over such issues as …

Reviled Mothers: Custody Modification Cases Involving Domestic Violence, Megan Shipley

Indiana Law Journal

No abstract provided.

Fulfilling The Promise Of Payne: Creating Participatory Opportunities For Survivors In Capital Cases, Megan A. Mullett

Indiana Law Journal

No abstract provided.

Between Victim And Agent: A Third-Way Feminist Account Of Trafficking For Sex Work, Shelley Cavalieri

Indiana Law Journal

Feminist legal theorists have devoted enormous attention to conceptualizing the issues of sex work and trafficking for sexual purposes. While these theories vary, they typically fall into one of two camps. The abolitionist perspective, having grown out of dominance feminist theory, perceives sex work as inherently exploitative. In contrast, a second group of theorists adopts a liberal notion of individual choice and draws on the poststructuralist rejection of gender essentialism to envision a theoretical model of sex-worker rights. The legal and public policies that grow from these two models are similarly polarized. Radical feminist abolitionists are often strange bedfellows with …

Behavioral Antitrust, Amanda P. Reeves, Maurice E. Stucke

Indiana Law Journal

No abstract provided.

A Tribute To Patrick Baude, Randall T. Shepard, Lauren K. Robel, Daniel O. Conkle, Laura J. Cooper, Roger B. Dworkin, Jeffrey E. Stake

Indiana Law Journal

The Board of Editors dedicates Volume 86 of the Indiana Law Journal to the memory of Patrick Baude, who taught at the School of Law from August 1968 until his death in January 2011, and who served for many years as the faculty advisor for the Indiana Law Journal. As evidenced below, Professor Baude’s influence spread far beyond the bounds of his classroom walls, and his presence in the Law School’s community will be sorely missed.

Introduction: Transnational Corporations Revisited, Gralf-Peter Calliess

Indiana Journal of Global Legal Studies

Articles first presented at a symposium in the context of the biannual conference of the German Law & Society Association (Vereinigung fur Recht und Gesellschaft e. V) on "Transnationalism in Law, the State, and Society." This conference was organized together with the Collaborative Research Center (CRC) 597 "Transformations of the State" at the University of Bremen from March 3-5, 2010. The Collaborative Research Center 597 'Transformations of the State," U. BREMEN, www.staat.uni-bremen.de

Self-Constitutionalizing Tncs? On The Linkage Of "Private" And "Public" Corporate Codes Of Conduct, Gunther Teubner

Indiana Journal of Global Legal Studies

What is special about the intertwining of private and public corporate codes? It is not only tendencies of juridification but also of constitutionalization that materialize in this interplay. Both types of corporate codes taken together represent the beginnings of specific transnational corporate constitutions conceived as constitutions in the strict sense. This point is based on a concept of constitutionalization that is not limited to the nation-state and implies that also nonstate societal orders develop autonomous constitutions under particular historical circumstances. The following arguments highlight how corporate codes feature functions, structures, and institutions of genuine constitutions:

1. To the extent that …

The Coevolution Of Transnational Corporations And Institutions, Sarianna M. Lundan

Indiana Journal of Global Legal Studies

While economic theories of the firm have traditionally focused on the ownership of assets, the increasing use of contractual partnerships is beginning to challenge our conception of the firm by emphasizing its coordinating role. In structuring their contracts, as well as in managing the relationships governed by the contracts, firms try to mitigate uncertainties that could destroy the value-adding potential of such transactions. These uncertainties may be specific to the transaction partner, but they might also arise from the institutional context of the contracting parties, particularly in the case of transactions that cross borders. The coevolutionary process whereby firms both …

Transnational Corporations As Steering Subjects In International Economic Law: Two Competing Visions Of The, Karsten Nowrot

Indiana Journal of Global Legal Studies

Transnational corporations (TNCs) not only occupy an important status as economic actors on the international scene, but they are also political actors who are increasingly involved in the progressive development and enforcement of the regulatory structures of the international economic system. Against this background, this article focuses on the current status and potential future development of TNCs as steering subjects in international economic law (IEL). It evaluates the role played by this category of nonstate actors in two of the central public international law fields of IEL, namely the legal order of the World Trade Organization (WTO) and the international …

Private Actors And Public Governance Beyond The State: The Multinational Corporation, The Financial Stability Board, And The Global Governance Order, Larry Cata Backer

Indiana Journal of Global Legal Studies

Transnational corporations are at the center of extraordinary and complex governance systems that are developing outside the state and international public organizations and beyond the conventionally legitimating framework of the forms of domestic or international hard law. Though these systems are sometimes recognized as autonomous and authoritative among its members, they are neither isolated from each other nor from the states with which they come into contact. Together these systems may begin to suggest a new template for networked governance beyond the state, but one in which public and private actors are integrated stakeholders. This provides the source of the …

The Changing Face Of Transnational Business Governance: Private Corporate Law Liability And Accountability Of Transnational Groups In A Post-Financial Crisis World, Peter Muchlinski

Indiana Journal of Global Legal Studies

This article seeks to critically assess the recently dominant financialized model of corporate law and governance and its contribution to the creation of the "asocial corporation" geared only to the enhancement of shareholder value. This article places corporate law in a wider context of national and international legal developments that, together, create a framework for the financialization of transnational corporate activity. This article shows that a new approach to transnational corporate governance is emerging from a number of sources. These predate the crisis but have been given impetus by it. In particular, three important phenomena are examined: the rise of …

The Transnational Law Market, Regulatory Competition, And Transnational Corporations, Horst Eidenmuller

Indiana Journal of Global Legal Studies

In many regions of the world and across various fields, law has become a product. Individuals and companies seek attractive legal regulations, and countries advertise their legal wares globally as they compete for customers. Transnational corporations in particular are prominent actors in the emerging transnational law market. This article investigates the causes of this development and discusses these changes with respect to company law, contract law, the law of dispute resolution, and insolvency law. It assesses the market for legal rules and its practical consequences, and it provides legal policy recommendations for an efficient framework of the transnational law market. …

Transnational Corporations, Global Competition Policy, And The Shortcomings Of Private International Law, Gralf-Peter Calliess, Jens Mertens

Indiana Journal of Global Legal Studies

In this article we criticize the so-called more economic approach to European competition law for disregarding the importance of a functional system of private law. Based on the availability of market governance as an alternative mode for organizing transactions, it is presumed that vertical integration, which is the central organizational structure of transnational corporations, is economically efficient. Since the enforcement of cross-border contracts by state-organized systems of private law, however, is insufficient, "make-or-buy" decisions in international commerce are prejudiced against arms' length transactions in markets. Consequently, international transactions are integrated vertically into firms' structures to a higher degree than comparable …

A Review Of Constitutional Theocracy, By Ran Hirschl, Sadia Saeed

Indiana Journal of Global Legal Studies

No abstract provided.

To Lynch A Child: Bullying And Gender Nonconformity In Our Nation's Schools, Michael J. Higdon

Indiana Law Journal

No abstract provided.

The Framers' Intent: John Adams, His Era, And The Fourth Amendment, Thomas K. Clancy

Indiana Law Journal

No abstract provided.

The Boundaries Of Privacy Harm, M. Ryan Calo

Indiana Law Journal

Just as a burn is an injury caused by heat, so is privacy harm a unique injury with specific boundaries and characteristics. This Essay describes privacy harm as falling into two related categories. The subjective category of privacy harm is the perception of unwanted observation. This category describes unwelcome mental states—anxiety, embarrassment, fear—that stem from the belief that one is being watched or monitored. Examples of subjective privacy harms include everything from a landlord eavesdropping on his tenants to generalized government surveillance.

The objective category of privacy harm is the unanticipated or coerced use of information concerning a person against …