Law Commons^™

Disappropriation, Matthew Lawrence

Matthew B. Lawrence

The Footprint Of The Chinese Petro-Dragon: The Future Of Investment Law In Transboundary Resources, Guillermo Garcia Sanchez

Guillermo J. Garcia Sanchez

Misconstruing Whistleblower Immunity Under The Defend Trade Secrets Act, Peter S. Menell

Peter Menell

In crafting the Defend Trade Secrets Act of 2016 (DTSA), Congress went beyond the federalization of state trade secret protection to tackle a broader social justice problem: the misuse of nondisclosure agreements (NDAs) to discourage reporting of illegal activity in a variety of areas. The past few decades have witnessed devastating government contracting abuses, regulatory violations, and deceptive financial schemes that have hurt the public and cost taxpayers and investors billions of dollars. Congress recognized that immunizing whistleblowers from the cost and risk of trade secret liability for providing information to the Government could spur law enforcement. But could this …

The Law Of Society: Governance Through Contract, Peter Zumbansen

Peer Zumbansen

This paper focuses on contract law as a central field in contemporary regulatory practice. In recent years, "governance by contract" has emerged as the central concept in the context of privatization, domestic and transnational commercial relations, and law-and-development projects. Meanwhile, as a result of the neo-formalist attack on contract law, "governance of contract" through contract adjudication, consumer protection law, and judicial intervention into private law relations has come under severe pressure. Building on early historical critique of the formalist foundations of an allegedly private law of the market, the paper assesses the current justifications for contractual governance and posits that …

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

Engines By Ge, Body By Houdini: State Secrets As A Procedural Restraint To The Resolution Of Disputes, Les Schiefelbein

Les Schiefelbein

Virtually every national government has a state secrets doctrine. The doctrine is best defined as “any information that, if disclosed publicly, would be reasonably likely to cause significant harm to the national defense or foreign relations of a government.”

Let me give state secrets some practical context and review how it is applied in the United Kingdom, the United States and France.

The best aviation description of my comments on state secrets is “Engines By GE, Body By Houdini.” The illusionist reference is an aviation descriptor of stealth airplanes whose invisibility to radar detection is like the state secret doctrine …

Public Actors In Private Markets: Toward A Developmental Finance State, Robert Hockett, Saule Omarova

Saule T. Omarova

The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of …

The State Secrets Privilege In The Post-9/11 Era, 30 Pace L. Rev. 778 (2010), Steven D. Schwinn

Steven D. Schwinn

No abstract provided.

Jobsohio: Don’T Let Progress Stand In The Way Of Progress, Patrick Martin

Patrick Martin

In February of 2011, Governor of Ohio John Kasich signed legislation that created JobsOhio. This has been a controversial program based on the method that it was implemented and some of the rules that govern the program.it. In November of 2013, ProgressOhio, a citizens advocacy group, challenged the constitutionality of the program but the suit was dismissed by the Ohio Supreme Court for lack of standing by the plaintiffs. There has been no court decision that adjudicates the program on the merits, only on the jurisdictional standing of a party to a suit that challenged the legislation. To date, only …

La Interpretación Constitucional De Los Contratos®, Daniel Fernando Gómez Tamayo

Daniel Fernando Gómez Tamayo

La Interpretación de los Contratos públicos y privados desde el constitucionalismo moderno. ¿Cómo hace el empleador o la ( parte redactora del contrato) para no generar pruebas incriminatorias de los vicios del consentimiento cuando obliga al trabajador , o, a la (parte adherente) a leer o firmar el contrato? ¿Se puede despedir a un trabajador sin indemnizar los perjuicios, y desconociendo los derechos de la tercera edad, de la madre cabeza de hogar, o de los derechos de las personas desaventajadas o incapacitadas?¿ Qué dice el bloque de constitucionalidad para los ignorantes y directivos de empresas de educación superior?

Contract Theory And The Failures Of Public-Private Contracting, Wendy Netter Epstein

Wendy Netter Epstein

The market for public-private contracting is huge and flawed. Public-private contracts for services such as prisons and welfare administration tend to result in cost savings at the sacrifice of quality service. For instance, to cut costs, private prisons skimp on security. Public law scholars have studied these problems for decades and have proposed various public law solutions. But the literature is incomplete because it does not approach the problem through a commercial lens. This Article fills that gap. It considers how economic analysis of contract law, in particular efficiency theory and agency theory, bear upon the unique problems of public-private …

The Revolving Door, Wentong Zheng

Wentong Zheng

The revolving door between the government and the private sector has long been presumed to lead to the capture of regulators by industry interests. A growing body of empirical literature, however, either finds no conclusive evidence of a capture effect or finds evidence of an opposite effect that the revolving door indeed results in more aggressive, not less aggressive, regulatory actions. To account for these incongruous results, scholars have formulated and tested a new “human-capital” theory positing that revolving-door regulators have incentives to be more aggressive toward the regulated industry as a way of signaling their qualifications to prospective industry …

A Public Interest Perspective On Local Number Portability: Consumers, Competition And Other Risks, J. Armand Musey Cfa, Michael Calabrese

J. Armand Musey, CFA

Before the Commission finalizes the selection of a vendor for the Local Number Portability Administrator (“LNPA”) contract, the Commission should take this opportunity to reconsider the future role of the number portability system and of the LNPA in relation to market competition, public safety and the IP technology transition. The functionality of today’s LNP platform extends well beyond providing routine number porting services between telecom carriers. It has evolved into a significant component in the greater ecosystem of telecommunications competition, public safety and technological evolution. As a result, any changes to the LNPA now will have broader and evolving public …

Buying Voice: Financial Rewards For Whistleblowing Lawyers, Nancy J. Moore, Kathleen Clark

Nancy J Moore

“Buying Voice: Financial Incentives for Whistleblowing Lawyers”

Kathleen Clark and Nancy J. Moore

Abstract

The federal government relies increasingly on whistleblowers to ferret out fraud, and has awarded whistleblowers over $4 billion under the False Claims Act and the Dodd-Frank Wall Street reform and Consumer Protection Act. May lawyers ethically seek whistleblower rewards under these federal statutes? A handful of lawyers have tried to do so as FCA qui tam relators. They have not yet succeeded, but several court decisions suggest that they might be able to do so under confidentiality exceptions to state ethics law, which several courts have …

A Taxing Endeavor: Local Government Protection Of Our Nation's Coasts In The "Wake" Of Climate Change, Simone Savino

Simone Savino

A storm is brewing, and not just in our nation’s coastal waters. The effects of climate change are becoming alarmingly apparent: sea levels are rising, storm surges are intensifying and ocean temperatures are warming at increasing speeds. Higher storm surges have led to increased flooding in coastal zones and nearby low-lying regions. The need for greater disaster preparedness in areas vulnerable to storm surges is evident, not just in the United States, but worldwide. As a direct result, coastal towns and cities have been left with the daunting task, and cost, of implementing littoral adaptation measures such as beach renourishment …

The Aftermath Of Governor Mcdonnell’S Corruption Trial: Proposing Comprehensive Ethics Reform In Virginia, Lisa J. Lindhorst

Lisa J Lindhorst

On September 4, 2014, a federal court convicted former governor of Virginia Bob McDonnell of eleven counts of corruption, bribery, and fraud for accepting over $165,000 worth of gifts and loans from the CEO of a local company. The egregious actions that led to these federal criminal convictions, however, were startlingly “legal” under Virginia’s ethics laws. The disparity between federal criminal standards and Virginia’s ethics standards illustrates the severe inadequacies that plague Virginia’s current system of ethics laws. Virginia’s absence of appropriate ethics laws and enforcement led to the state’s failing State Integrity Investigation grade, and the public acknowledgment by …

Renegotiating Investment Contracts: The Case Of Mining Contracts In Democratic Republic Of The Congo, Lukanda F. Kapwadi

Francky Lukanda

This article examines the issue of renegotiating an existing investment contract which does not provide for renegotiation clause. A prevailing theory in this respect asserts that a claim for renegotiating an existing agreement which contains no renegotiation clause should be disregarded as it amounts to an undue interference. This article addresses the question whether a contract concluded with unelected government or leaders of military factions in contravention to prevalent laws should escape revision. In particular, it assesses the rules and principles pertaining to renegotiation of an existing agreement against the Congolese process of renegotiation which involved over sixty mining contracts.

Turning Off The Tap On Thailand's Graft Pipeline: Renewed Emphasis On Mega-Projects And Counter-Corruption Needs Renewed Emphasis On Public Procurement Law, Daniel J. Mitterhoff

Daniel Mitterhoff

This commentary uses the Thai government's simultaneous emphases on implementing large scale infrastructure projects and controlling corruption to advocate that the Thai government needs to engage in fundamental public procurement law reforms; reforms that have been neglected for far too long.

Regulatory Institutions Of The Global South: Why Are They Different And What Can Be Done About It?, Yugank Goyal

Yugank Goyal

Developing countries suffer from underperforming regulatory agencies compared to those in the developed world. The paper attempts to theorize general reasons behind such divergence. It argues that the differences lie in developing countries’ (a) higher priorities for redistribution, (b) structurally different institutional endowments, especially at informal level, and (c) limited informational channels. The paper proposes that a multi-stakeholder (with increased emphasis on judiciary and civil society) approach has potential to address the shortcomings. It tests these claims through studying cases of telecom and electricity regulation in India.

Internacionalización Y Duplicidad De La Solución De Controversias De Contratos De Obra Concesiones Y Asociaciones Público-Privadas, Jancarlos Jair Vega Lugo

Jancarlos Jair Vega Lugo

No abstract provided.

Let Educators Educate, Let Builders Build: Making A Case For School Facility Privatization, John Pizzo

John Pizzo

No abstract provided.

Public School Governance And Cyber Security: School Districts Provide Easy Targets For Cyber Thieves, Michael A. Alao

Michael A. Alao

School districts rely on information systems to a similar extent as private, business organizations, yet the rules and regulations to ensure that school districts maintain adequate security to prevent data breaches and theft have failed to keep pace with private-sector developments. Advances in the private sector include notice-of-breach laws, consumer protection laws limiting individual liability for fraudulent electronic funds transfers, and auditing and reporting of internal controls. The public sector, including school districts, has also made advances in cyber security rules and regulations, but to a more limited extent than the private sector. Because of the sheer number of public …

Revisiting The Government As Plaintiff, Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

This is a symposium essay dedicated to the late Richard Nagareda and written in response to Adam S. Zimmerman's piece, The Corrective Justice State. As Professor Zimmerman recognizes, the debate over governments acting as plaintiffs and “regulating by deal” has shifted from initial questions over whether litigation produces the best public policy and whether executive officials are acting within the scope of their authority to how government actors should pursue and allocate settlements. Yet, as this first wave of controversy suggests, the slate upon which executive officials currently write is neither clean nor uncontroversial. Instead, this new debate is playing …

Civil Consequences Of Corruption In International Commercial Contracts, Padideh Ala'i

Padideh Ala'i

How To Create American Manufacturing Jobs, John D. Gleissner Esquire

John D Gleissner Esquire

No abstract provided.

Liquid Assets: A Coasian Economic Analysis Of Oregon's Allocation Of Conserved Water Program, Richard A. Grisel

Richard A Grisel

Diversions for residential, agricultural, recreational, commercial, industrial, and other beneficial uses have had the effect of removing water from rivers and tributaries throughout the western U.S. Another, more recent, competing use is ecological, demonstrated by the legal recognition of instream beneficial uses in some jurisdictions. As awareness of the progressively acute need for reallocation has increased in the arid West, so has interest in water markets and other mechanisms to facilitate transfers across beneficial uses. However, governments and water users face a legacy prior appropriation system that prohibits instream beneficial uses, encourages maximal diversion, stifles water right fungibility, and generally …

Presentación "El Procedimiento Administrativo", Norma E. Pimentel

Norma E Pimentel

Presentación al módulo 2

Challenges In Designing Public Procurement Linkages: The Case Study Of Smes Preference In China’S Government Procurement, Jianlin Chen

Jianlin Chen

Preferential treatment in government procurement, also known as procurement linkages, is a con-troversial yet popular tool to achieve socio-economic goals, most importantly, affirmative action for certain targeted groups. This Article utilizes the recently enacted small-medium enterprise (“SME”) procurement linkages in China to examine the pitfalls in the design of procurement linkages. Two major deficiencies of the Chinese regime impede effective implementation of procurement linkages. First, loopholes in the Chinese regulatory regime allow large enterprises to usurp the benefits meant for SMEs through the use of wholly owned subsidiaries and other corporate arrangements. Second, aggrieved suppliers face stringent procedural requirements and …

Government Election Advocacy: Implications Of Recent Supreme Court Analysis, Steven J. Andre

Steven J. Andre

The constitutional issue presented by government partisanship in elections is becoming increasingly significant for review by the U.S. Supreme Court. The high Court’s decisions in Arizona Free Enterprise Club, Citizens United v. FEC and Pleasant Grove City v. Summum shed significant light on how the high Court would handle the government campaigning question if it should ever accept review on the issue. This article reviews lower court treatment of the problem and describes the U.S. Supreme Court’s analysis of election and First Amendment concerns and applies that analysis to the question of partisan government expenditures during election contests.

Gaming The System: Bio-Economics, Game Theory, & Fisheries Management, Richard A. Grisel

Richard A Grisel

This paper argues that game theory provides powerful, effective new tools to analyze externalities that occur in the context of strategic, multi-party, interactive decision-making. I will attempt to treat this as a non-technical paper and avoid the complex mathematics better left to economists and mathematicians. Instead, a more achievable goal is to illustrate how high-seas open-access fishing is virtually identical to a game situation, treat the fundamentals of game theory, and demonstrate that game theoretic analyses are well-suited and fruitful for designing effective policy responses to fisheries management, particularly with respect to the straddling stocks problem. Indeed, one seminal fisheries …