Towards a Basal Tenth Amendment: A Riposte to National Bank Preemption of State Consumer Protection Laws

Recent regulations promulgated by the Office of the Comptroller of the Currency assert a sweeping authority to preempt a broad array of state laws, including consumer protection laws, applicable not only to national banks but to their state-chartered operating subsidiaries. These regulations threaten to disrupt state efforts to combat predatory lending and other abusive practices and to interfere with a state’s sovereign authority over corporations chartered under its laws. Yet federal courts faced with challenges to these initiatives have failed to devote any substantial analysis to claims based on the Tenth Amendment. The problem with such claims is the absence of any substantial doctrinal base in Tenth Amendment jurisprudence. This article first explores the legal and policy implications of the preemption program and identifies the consumer protection interests at stake and the states’ role in vindicating those interests. It then considers the importance of judicial review to the Framers’ federalism design and endeavors to distill from their commentary and debates some substantive content for the Tenth Amendment that federal courts could credibly enforce. The article concludes with a modest suggested template for doctrinal analysis of Tenth Amendment issues arising from federal administrative action

Education for Judicial Aspirants

This article is a synthesis of the author’s work to date on the subject of Introductory Judiciary Education... This article will consider the concept of Introductory Judicial Education, its underlying rationale and purpose, and the possible curricular content of such a program

Transparency in Global Merger Review: A Limited Role for the WTO?

This article identifies certain problems faced by parties to transnational merger transactions in view of the global proliferation in recent years of competition (and, specifically, merger review) laws. After considering the pros and cons of merger remedies (both structural and behavioral) that may be offered to mitigate potentially anticompetitive effects and illustrating (through a case study of the GE/Honeywell transaction) the pitfalls of divergent market definition even as between two legal regimes employing substantially similar standards, the article reviews and critiques proposals for establishing a supranational competition authority under the aegis of the World Trade Organization. While rejecting the WTO as institutionally and politically unsuitable for such a role, the article concludes by identifying certain modest, procedural functions the WTO might usefully perform in order to make transnational merger review fairer and more efficient

Education for Judicial Aspirants

Introductory judicial education (IJE) is an avenue for improving both appointive and elective systems of judicial selection. The impetus for considering this topic can be traced back to lingering unease with judicial selection and the ongoing (though now somewhat stagnant) debate over merit selection. Moreover, changes in the nature of law practice and the judicial role over the past several decades have rendered the gap between those two activities increasingly large. Moreover, surveys of minority communities have consistently demonstrated a far lower degree of confidence in the impartiality and fairness of our nation’s judges. IJE is an effort to maximize the chances that judicial selection, by any process, will result in a judiciary composed of competent individuals who are not only philosophically attuned to the imperatives of fairness and impartiality (both in appearance and in fact) but capable of performing at a higher level of competence and efficiency as a result of having received specialized training. This article discusses the case for, and potential content of, a program of education for those who aspire to judicial office. The program envisioned would be completely voluntary and would not by any means displace existing selection mechanisms. Instead, it would serve to enhance them by making available to judicial aspirants educational programs designed to produce judicial candidates who are better prepared for the role and who can make a more informed decision regarding whether a judicial career is appropriate for them. Furthermore, such training will advance the cause of professionalism by improving the overall quality of the pool of people seeking election or appointment to the bench. Individual state bar associations will be able to take leading roles in fashioning the optimal format and curriculum of such a program and fostering the ideals of fair and impartial courts that have long been the hallmark of our legal system

Chief Justice Roberts and the Forty Thieves

“What’s in a name? That which we call a rose/ By any other name would smell as sweet.” Whether or not one agrees with the young Shakespeare about names – and many decidedly do not – numbers (as numerologists undoubtedly will assure you) are decidedly a different story and have always been thought to have extrinsic significance. The number forty, for example, has extensive numerological significance, principally (though not exclusively) in biblical texts. A time period in the Bible – whether in days, months, or years and whether in the books of the Old or New Testament – that features the number forty is most often a time of trial, testing, punishment, or probation; however, the number forty in blockedure also symbolized periods of peace and reward. Thus one cannot help but remark at the rather prominent instantiation of the number forty in a Supreme Court opinion, even a dissent. This occurred in the Supreme Court’s June 8, 2009 decision in Caperton v. A.T. Massey Coal Co., a case that has attracted considerable publicity and public interest. The dissenting opinion of Chief Justice Roberts prominently featured forty questions about the scope of, ramifications of, and limitations on the majority’s decision

Quantum phases of atomic boson-fermion mixtures in optical lattices

The zero-temperature phase diagram of a binary mixture of bosonic and fermionic atoms in an one-dimensional optical lattice is studied in the framework of the Bose-Fermi-Hubbard model. By exact numerical solution of the associated eigenvalue problems, ground state observables and the response to an external phase twist are evaluated. The stiffnesses under phase variations provide measures for the boson superfluid fraction and the fermionic Drude weight. Several distinct quantum phases are identified as function of the strength of the repulsive boson-boson and the boson-fermion interaction. Besides the bosonic Mott-insulator phase, two other insulating phases are found, where both the bosonic superfluid fraction and the fermionic Drude weight vanish simultaneously. One of these double-insulator phases exhibits a crystalline diagonal long-range order, while the other is characterized by spatial separation of the two species.Comment: 4 pages, 3 figures, using REVTEX