Constitutional Analogies in the International Legal System

This Article explores issues at the frontier of international law and constitutional law. It considers five key structural and systemic challenges that the international legal system now faces: (1) decentralization and disaggregation; (2) normative and institutional hierarchies; (3) compliance and enforcement; (4) exit and escape; and (5) democracy and legitimacy. Each of these issues raises questions of governance, institutional design, and allocation of authority paralleling the questions that domestic legal systems have answered in constitutional terms. For each of these issues, I survey the international legal landscape and consider the salience of potential analogies to domestic constitutions, drawing upon and extending the writings of international legal scholars and international relations theorists. I also offer some preliminary thoughts about why some treaties and institutions, but not others, more readily lend themselves to analysis in constitutional terms. And I distinguish those legal and political issues that may generate useful insights for scholars studying the growing intersections of international and constitutional law from other areas that may be more resistant to constitutional analogies

Restoring the Fact/Law Distinction in Patent Claim Construction

Two decades ago, the Supreme Court sought to promote more effective, transparent patent litigation in Markman v. Westview Instruments by ruling that “the construction of a patent, including terms of art within its claim, is exclusively within the province of the court.” In so doing, the Court removed interpretation of patent claims from the black box of jury deliberations by holding that the Seventh Amendment right to a jury trial did not extend to patent claim construction. Failing to find clear historical evidence of how claim construction was handled in 1791, the Court turned to “the relative interpretive skills of judges and juries and the statutory policies that ought to be furthered by the allocation.” It concluded that federal district court judges were better equipped than juries to resolve the mixed fact/law controversies inherent in construing disputed patent claim terms, thereby leading to more effective and transparent patent litigation. Fully achieving the Court’s goal of more effective and transparent patent litigation, however, depends on district judges having the flexibility to learn pertinent facts, build a reviewable record, and explain the basis for their claim constructions

Transcriptional response of human mast cells stimulated via the FcεRI and identification of mast cells as a source of IL-11

BACKGROUND: In asthma and other allergic disorders, the activation of mast cells by IgE and antigen induces the cells to release histamine and other mediators of inflammation, as well as to produce certain cytokines and chemokines. To search for new mast cell products, we used complementary DNA microarrays to analyze gene expression in human umbilical cord blood-derived mast cells stimulated via the high-affinity IgE receptor (FcεRI). RESULTS: One to two hours after FcεRI-dependent stimulation, more than 2,400 genes (about half of which are of unknown function) exhibited 2–200 fold changes in expression. The transcriptional program included changes in the expression of IL-11 and at least 30 other cytokines and chemokines. Human mast cells secreted 130–529 pg of IL-11/10(6) cells by 6 h after stimulation with anti-IgE. CONCLUSION: Our initial analysis of the transcriptional program induced in in vitro-derived human mast cells stimulated via the FcεRI has identified many products that heretofore have not been associated with this cell type, but which may significantly influence mast cell function in IgE-associated host responses. We also have demonstrated that mast cells stimulated via the FcεRI can secrete IL-11. Based on the previously reported biological effects of IL-11, our results suggest that production of IL-11 may represent one link between IgE-dependent mast cell activation in subjects with allergic asthma and the development of a spectrum of structural changes in the airways of these individuals; such changes, collectively termed "airway remodeling," can constitute an important long term consequence of asthma

Varieties of Capitalism and the Learning Firm: Contemporary Developments in EU and German Company Law - A Comment on the Strine-Bainbridge Debate About Shared Values of Corporate Management and Labor

Research in corporate governance and in labour law has been characterized by a disjuncture in the way that scholars in each field are addressing organizational questions related to the business enterprise. While labour has eventually begun to shift perspectives from aspirations to direct employee involvement in firm management, as has been the case in Germany, to a combination of \u27exit\u27 and \u27voice\u27 strategies involving pension fund management and securities litigation, it remains to be seen whether this new stream will unfold as a viable challenge to an otherwise exclusionary shareholder value paradigm. At the same time, recent suggestions made by Delaware Chancery Court Vice Chancellor Strine, to dare think about potentially shared commitments between management and labor - and UCLA\u27s Stephen Bainbridge\u27s response - underline the viability - and, the contestedness - of attempts at moving the corporate governance debate beyond the confines of corporate law proper. While such a wider view had already famously been encouraged by Dean Clarke in his 1986 treatise on Corporate Law (p. 32), mainstream corporate law does not seem to have endorsed this perspective. This paper takes the questionable divide between management and labor within the framework of a limiting corporate governance concept as starting point to explore the institutional dynamics of the corporation, hereby building on the theory of the innovative enterprise, as developed by management theorists Mary O\u27Sullivan and William Lazonick. Largely due to the sustained distance between corporate and labour law scholars, neither group has effectively addressed their common blind spot: a better understanding of the business enterprise itself. In midst of an unceasing flow of affirmations of the finance paradigm of the corporation on the one hand and \u27voice\u27 strategies by labour on the other, it seems to fall to management theorists to draw lessons from the continuing co-existence of different forms of market organization, in which companies appear to thrive. Exploring the conundrum of \u27risky\u27 business decisions within the firm, management theorists have been arguing for the need to adopt a more sophisticated organizational perspective on companies operating on locally, regionally and transnationally shaped, often highly volatile market segments. Research by comparative political economists has revealed a high degree of connectivity between corporate governance and economic performance without, however, arriving at such favourable results only for shareholder value regimes. Such findings support the view that corporate governance regimes are embedded in differently shaped regulatory frameworks, characterized by distinct institutions, both formal and informal, and enforcement processes. As a result of these findings, arguments to disassociate issues of corporate governance from those of the firm\u27s (social) responsibility [CSR] have been losing ground. Instead, CSR can be taken to be an essential part of understanding a particular business enterprise. It is the merging of a comparative political economy perspective on the corporation with one on the organizational features, structures and processes of the corporation, which can help us better understand the distribution of power and knowledge within the \u27learning firm\u27

Theology in Public Reason and Legal Discourse: A Case for the Preferential Option for the Poor

There is a strange disconnect between the formal understanding of the separation of religion from government in the United States and the almost ubiquitous use of religious language in political discourse, not to mention the web of complicated religious motivations that sit on or just below the surface of policy debates. This paper presents an argument for the relevance of the principle of the preferential option for the poor from Catholic social thought in public reason and legal discourse in order to explore the possible advantages of making the veil between religion and the secular state more permeable. As a case study, it proposes dialogue between Catholicism and complementary secular thought, including standpoint theory, outsider methodology, and law and economics to explore possibilities for more effectively ensuring justice for the poor and marginalized

Breakdown of universality in multi-cut matrix models

We solve the puzzle of the disagreement between orthogonal polynomials methods and mean field calculations for random NxN matrices with a disconnected eigenvalue support. We show that the difference does not stem from a Z2 symmetry breaking, but from the discreteness of the number of eigenvalues. This leads to additional terms (quasiperiodic in N) which must be added to the naive mean field expressions. Our result invalidates the existence of a smooth topological large N expansion and some postulated universality properties of correlators. We derive the large N expansion of the free energy for the general 2-cut case. From it we rederive by a direct and easy mean-field-like method the 2-point correlators and the asymptotic orthogonal polynomials. We extend our results to any number of cuts and to non-real potentials.Comment: 35 pages, Latex (1 file) + 3 figures (3 .eps files), revised to take into account a few reference