The Coordination Conundrum

Justice Souter\u27s oft-repeated quote aptly summarizes the function of strict standards of review in constitutional jurisprudence to protect unpopular speech from restrictions based on content-laden value judgments. While strict standards have their advantages, commentators have found fault with their rigidity and have questioned whether any decision-making process can, or should, be free of pragmatic considerations. This doctrinal discussion has been reinvigorated by two recent United States Supreme Court opinions. At the root of both cases was the Court\u27s reliance on the distinction between coordinated and independent speech. This Article examines the validity of this divide and challenges the foundation upon which the coordinated and independent dichotomy rests. This Article argues that the Court has introduced a new standard, used in both cases-a coordination standard-that conflates the government\u27s interest in restricting speech with the nature of the speech at issue. This leads to a largely outcome-determinative standard that is not content neutral, and is a cardinal departure from settled First Amendment law. This Article tests its hypothesis by applying the contradicting uses of coordination found in the two cases to a hypothetical test case restrictions on private aid to impoverished foreign nations in furtherance of a new development model-and proposes a framework for future analysis of First Amendment issues which avoids the pitfalls revealed by the coordination divide

Veil Piercing and the Untapped Power of State Courts

The U.S. Supreme Court in recent years has embraced an anti-majoritarian trend toward providing constitutional protections for the elite who own or control corporations. This trend is especially troubling as it threatens to undermine the balance found in state corporate law between private ordering for internal corporate matters and government regulation to police the negative externalities of the corporate form. The Court\u27s interventions also have the potential to leave vulnerable groups without the protection of religiously-neutral laws designed to prevent discrimination, protect workers, or provide essential services such as health care. While the U.S. Supreme Court has not yet explicitly preempted what has traditionally been the province of states, the Court has relied, both implicitly and explicitly, on its own controversial definitions of state law as the foundation on which to create speech rights for corporations and religious rights for corporate owners. Absent explicit federal preemption, states can and should fight back against this creeping federalization of state corporate law. This Article provides a roadmap. It suggests modest changes to the veil piercing doctrine that can help to restore, at least in part, the balance of power between states and their corporate creations. A state court signaling to business owners even a potential for piercing, and thus the potential for unlimited personal liability, could discourage corporations doing business in the state from seeking religious exemptions to neutrally applicable laws. Most importantly, these changes do not threaten to undermine the corporate control mechanisms that have allowed for efficient private ordering within corporations, nor will they allow corporations to avoid these third-party protections by reincorporating in a different state. Forcing the federal courts to confront state assertions of their right to limit and define corporations will, at the very least, require the U.S. Supreme Court to be transparent about the extent to which it intends to federalize state corporate law, advancing rule of law values like certainty and predictability that are important to individuals and corporations alike

Balancing Acts: The Rights of Women and Cultural Minorities in Kenyan Marital Law

In the postcolonial world, many developing nations struggle to manage significant populations of different ethnic groups, religions, and nationalities within their borders. There has been a concentrated effort on the part of many nations to provide protection for cultural groups, even to the extent of allowing cultural and religious groups to define the personal law that will govern their members. Often, however, the effort to provide freedom for cultural groups to practice their beliefs conflicts with the ideals of equality and choice for women that are central to the liberal feminist movement. In this Note, Catherine Hardee surveys the theoretical literature surrounding the debate between multiculturalism and feminism and advocates for the use of a middle-ground approach that balances the rights both of cultural groups and women-giving minority groups protection from the law of the majority if and only if, their practices do not interfere with the rights of individuals within that culture to fully participate in society. Hardee then examines Kenyan marital law to see how that balance is struck. She finds that the multiple types of marriages available to Kenyan women create something of a market in marriage with the potential to amplify women\u27s voices through choice. Practical problems, however, lead to inefficiencies in the market that threaten women\u27s rights. To adequately protect women\u27s interests these inefficiencies must be addressed to ensure that market outcomes accurately reflect the preferences of women within the cultural group

The Coordination Conundrum

Justice Souter\u27s oft-repeated quote aptly summarizes the function of strict standards of review in constitutional jurisprudence to protect unpopular speech from restrictions based on content-laden value judgments. While strict standards have their advantages, commentators have found fault with their rigidity and have questioned whether any decision-making process can, or should, be free of pragmatic considerations. This doctrinal discussion has been reinvigorated by two recent United States Supreme Court opinions. At the root of both cases was the Court\u27s reliance on the distinction between coordinated and independent speech. This Article examines the validity of this divide and challenges the foundation upon which the coordinated and independent dichotomy rests. This Article argues that the Court has introduced a new standard, used in both cases-a coordination standard-that conflates the government\u27s interest in restricting speech with the nature of the speech at issue. This leads to a largely outcome-determinative standard that is not content neutral, and is a cardinal departure from settled First Amendment law. This Article tests its hypothesis by applying the contradicting uses of coordination found in the two cases to a hypothetical test case restrictions on private aid to impoverished foreign nations in furtherance of a new development model-and proposes a framework for future analysis of First Amendment issues which avoids the pitfalls revealed by the coordination divide

Who\u27s Causing the Harm?

My parents started a software company out of our family room when I was just five years old As a child, the business felt like the sixth member of our family A fourth child who grew up alongside my sisters and me and whom my parents struggled with, stressed over, and strove to infuse with their values just as they did their flesh and blood children. Take pride in your work and stand behind what you do applied equally to homework and product launches. The Golden Rule to treat others as you would like to be treated meant that, long before mandates, my parents provided all their employees with health insurance and a living wage. Along the way, corporate documents were drawn up and the corporation was born, a legal resident of our home state of Washington. But such formalities were an inconsequential blip compared to the seemingly endless discussions around the dinner table about coding issues; playing hide and seek in successively larger office spaces; or watching my parents put on a good face while they stressed over sales numbers. My family\u27s business is the classic Ameican success story. What started in our den now occupies a small office building housing several dozen employees. My older sister and her husband have taken over the business-the next generation of the family enterprise. There has never been a formal corporate policy instructing the business: \u27Don\u27t be evil. Instead, my parents, and now my sister, run a company that mirrors their personal beliefs about honesty, integrity, morality, and hard work. A business that reflects who we are as a family. Envisioning my family without the business is difficult but the idea that the corporation could exist apart from my family simply does not compute

Veil Piercing and the Untapped Power of State Courts

The U.S. Supreme Court in recent years has embraced an anti-majoritarian trend toward providing constitutional protections for the elite who own or control corporations. This trend is especially troubling as it threatens to undermine the balance found in state corporate law between private ordering for internal corporate matters and government regulation to police the negative externalities of the corporate form. The Court’s interventions also have the potential to leave vulnerable groups without the protection of religiously-neutral laws designed to prevent discrimination, protect workers, or provide essential services such as health care. While the U.S. Supreme Court has not yet explicitly preempted what has traditionally been the province of states, the Court has relied, both implicitly and explicitly, on its own controversial definitions of state law as the foundation on which to create speech rights for corporations and religious rights for corporate owners. Absent explicit federal preemption, states can and should fight back against this creeping federalization of state corporate law. This Article provides a roadmap. It suggests modest changes to the veil piercing doctrine that can help to restore, at least in part, the balance of power between states and their corporate creations. A state court signaling to business owners even a potential for piercing, and thus the potential for unlimited personal liability, could discourage corporations doing business in the state from seeking religious exemptions to neutrally applicable laws. Most importantly, these changes do not threaten to undermine the corporate control mechanisms that have allowed for efficient private ordering within corporations, nor will they allow corporations to avoid these third-party protections by reincorporating in a different state. Forcing the federal courts to confront state assertions of their right to limit and define corporations will, at the very least, require the U.S. Supreme Court to be transparent about the extent to which it intends to federalize state corporate law, advancing rule of law values like certainty and predictability that are important to individuals and corporations alike

Population policies and education: exploring the contradictions of neo-liberal globalisation

The world is increasingly characterised by profound income, health and social inequalities (Appadurai, 2000). In recent decades development initiatives aimed at reducing these inequalities have been situated in a context of increasing globalisation with a dominant neo-liberal economic orthodoxy. This paper argues that neo-liberal globalisation contains inherent contradictions regarding choice and uniformity. This is illustrated in this paper through an exploration of the impact of neo-liberal globalisation on population policies and programmes. The dominant neo-liberal economic ideology that has influenced development over the last few decades has often led to alternative global visions being overlooked. Many current population and development debates are characterised by polarised arguments with strongly opposing aims and views. This raises the challenge of finding alternatives situated in more middle ground that both identify and promote the socially positive elements of neo-liberalism and state intervention, but also to limit their worst excesses within the population field and more broadly. This paper concludes with a discussion outling the positive nature of middle ground and other possible alternatives

Mitochondrial physiology

As the knowledge base and importance of mitochondrial physiology to evolution, health and disease expands, the necessity for harmonizing the terminology concerning mitochondrial respiratory states and rates has become increasingly apparent. The chemiosmotic theory establishes the mechanism of energy transformation and coupling in oxidative phosphorylation. The unifying concept of the protonmotive force provides the framework for developing a consistent theoretical foundation of mitochondrial physiology and bioenergetics. We follow the latest SI guidelines and those of the International Union of Pure and Applied Chemistry (IUPAC) on terminology in physical chemistry, extended by considerations of open systems and thermodynamics of irreversible processes. The concept-driven constructive terminology incorporates the meaning of each quantity and aligns concepts and symbols with the nomenclature of classical bioenergetics. We endeavour to provide a balanced view of mitochondrial respiratory control and a critical discussion on reporting data of mitochondrial respiration in terms of metabolic flows and fluxes. Uniform standards for evaluation of respiratory states and rates will ultimately contribute to reproducibility between laboratories and thus support the development of data repositories of mitochondrial respiratory function in species, tissues, and cells. Clarity of concept and consistency of nomenclature facilitate effective transdisciplinary communication, education, and ultimately further discovery

Mitochondrial physiology

As the knowledge base and importance of mitochondrial physiology to evolution, health and disease expands, the necessity for harmonizing the terminology concerning mitochondrial respiratory states and rates has become increasingly apparent. The chemiosmotic theory establishes the mechanism of energy transformation and coupling in oxidative phosphorylation. The unifying concept of the protonmotive force provides the framework for developing a consistent theoretical foundation of mitochondrial physiology and bioenergetics. We follow the latest SI guidelines and those of the International Union of Pure and Applied Chemistry (IUPAC) on terminology in physical chemistry, extended by considerations of open systems and thermodynamics of irreversible processes. The concept-driven constructive terminology incorporates the meaning of each quantity and aligns concepts and symbols with the nomenclature of classical bioenergetics. We endeavour to provide a balanced view of mitochondrial respiratory control and a critical discussion on reporting data of mitochondrial respiration in terms of metabolic flows and fluxes. Uniform standards for evaluation of respiratory states and rates will ultimately contribute to reproducibility between laboratories and thus support the development of data repositories of mitochondrial respiratory function in species, tissues, and cells. Clarity of concept and consistency of nomenclature facilitate effective transdisciplinary communication, education, and ultimately further discovery

Considering Consequences: Autonomy’s Missing Half

In a subtle but discernible trend, courts, commentators, and policymakers increasingly use autonomy-based justifications to support expanding economic rights. Their use of autonomy, however, is inconsistent with the concept of traditional liberal autonomy that proponents of economic rights embrace. This is because many, if not most, economic choices have some measure of consequences ameliorated by state action. This Article exposes the conceptual incoherence of this approach and argues that these autonomy-based arguments are invalid when they fail to acknowledge the vital role consequences play in constituting liberal autonomy. It also demonstrates that the failure to account for consequences in determining the value of a choice creates conceptual and practical problems that can unnecessarily hamper effective regulations while simultaneously undervaluing true autonomy. To do so, this Article uses the Supreme Court\u27s landmark NFB v. Sebelius decision and the debate over privatizing Social Security as case studies to critique autonomy-based arguments used to justify economic rights in circumstances where consequences are artificially constrained. This Article then provides an alternative consequence-focused framework for evaluating the regulation of such choices. Finally, this Article applies that framework to demonstrate that considering consequences helps ensure a more robust protection of true autonomy while still providing policymakers flexibility to address social issues