Rethinking Anti-Aggregation Doctrine

The article focuses on a new strategy to anti-aggregation agreements, contractual provisions which prohibit parties to participate in class action. It discusses the U.S. Supreme Court\u27s decision in AT&T Mobility LLC v. Concepcion, suggesting that such agreements should be based on actual regulatory compliance. It mentions that anti-aggregation agreements are applied by default, but in case there will be an irreversible harm occurring to party, such agreements will not be applicable

Administrative Sabotage

Government can sabotage itself. From the president’s choice of agency heads to agency budgets, regulations, and litigating positions, presidents and their appointees have undermined the very programs they administer. But why would an agency try to put itself out of business? And how can agencies that are subject to an array of political and legal checks sabotage statutory programs? This Article offers an account of the “what, why, and how” of administrative sabotage that answers those questions. It contends that sabotage reflects a distinct mode of agency action that is more permanent, more destructive, and more democratically illegitimate than more-studied forms of maladministration. In contrast to an agency that shirks its statutory duties or drifts away from Congress’s policy goals, one engaged in sabotage aims deliberately to kill or nullify a program it administers. Agencies sabotage because presidents ask them to. Facing pressure to dismantle statutory programs in an environment where securing legislation from Congress is difficult and politically costly, presidents pursue retrenchment through the administrative state. Building on this positive theory of administrative sabotage, this Article considers legal responses. The best response, this Article contends, is not reforms to the cross-cutting body of administrative law that structures most agency action. Rather, the risk of sabotage is better managed through changes to how statutory programs are designed. Congress’s choices about agency leadership, the concentration or dispersal of authority to implement statutory programs, the breadth of statutory delegations, and other matters influence the likelihood that sabotage will succeed or fail. When lawmakers create or modify federal programs, they should design them to be less vulnerable to sabotage by the very agencies that administer them

Federal Rules of Private Enforcement

The Federal Rules of Civil Procedure were made for a different world. Fast approaching their hundredth anniversary, the Rules reflect the state of litigation in the first few decades of the twentieth century and the then-prevailing distinction between substantive rights and the procedure used to adjudicate them. The role of procedure, the rulemakers believed, was to resolve private disputes fairly and efficiently. Today, a substantial portion of litigation in federal court is brought under regulatory statutes that deploy private lawsuits to enforce public regulatory policy. This type of litigation, which scholars refer to as private enforcement, is the engine for statutory regimes governing the workplace, the consumer economy, securities markets, the environment, civil rights, and more. Yet while the nature of federal court litigation has changed dramatically in the decades since the Rules were first promulgated, the Rules and the institutions through which they are made never adapted. The Rules thus perform a role--providing the infrastructure for a litigation landscape dominated by private enforcement--far different from the one they initially performed.This Article unearths the history of how the Federal Rules of Civil Procedure became federal rules of private enforcement but were never adapted for their new task. It then explores how that transformation challenges foundational assumptions of federal civil procedure. In delegating authority to prescribe general rules of practice and procedure, Congress does not only charge the judiciary with making rules to resolve disputes, but also with making rules that enable privately enforced regulatory regimes to function. The Rules and the court rulemaking process, however, continue to be driven by assumptions inherited from the founding era of federal court rulemaking. We trace how the disconnect between the Rules\u27 original design and their modern function explains many of the most significant pathologies in federal court rulemaking today. We further argue that acknowledging this disconnect--and rethinking the Rules to support their private enforcement function--points the way to a reinvigorated rulemaking system for the modern litigation state. By recasting the relationship between the Rules and private enforcement, our account supplies fresh rationales for court rulemaking, sheds new light on the functions today\u27s rulemakers perform, and justifies reforms that would align the rulemaking process and the Rules themselves with the laws they enforce. This Article thus seeks to update the Federal Rules of Civil Procedure in light of the function they have taken on in the near-century since they came into effect--and, in doing so, seeks to make them a modern, enduring achievement

Public Policy and Innovation: Two Cases

Two fertile fields for research on the relationships between public policies and innovation are transportation and environmental protection. In both cases, numerous policy instruments having different purposes, some of which are unrelated to the rate and direction of technological change, have been brought to bear on a rather diverse collection of related industries, some regulated relatively heavily and others subject to only a few administrative controls. Unfortunately, relatively few studies of the effect of transportation or environmental policy actions on innovation have been undertaken, and apparently no comprehensive study has ever been made in either area of how policies interact or how their impact differs according to such factors as market concentration or extent of regulation

Blue State Exodus?

American businesses and families are leaving Blue states in record numbers for destinations like Texas, Florida, and Georgia. This migration of people, businesses, and tax dollars has prompted claims of a “Blue state exodus” prompted by “leftist politicians imposing leftist ideology.” As expressed by Utah’s Senator Mike Lee, the “exodus” proves that “the Left’s policies don’t work.” But does the movement of taxpayers from Blue to Red states really signal a rejection of progressive policies? This Essay argues that, before accepting that interpretation, we should consider another possibility. Perhaps Blue states aren’t overly progressive, but insufficiently so. Paralyzed by political dynamics that keep them from offering affordable housing and addressing police violence, and prevented by the Supreme Court from taking aggressive action on gun violence and public health, Blue states are losing taxpayers and unable to attract Red state refugees seeking to escape punishing anti-Black, anti-choice, and anti-LGBTQ+ policies, in large measure because they’re unable to offer a sufficiently meaningful alternative to life in Red America to justify their higher cost of living. This account of the Blue state exodus has very different implications from Lee’s. It suggests that, rather than tacking to the center, Blue states should redouble efforts to prioritize affordability, stop subsidizing Red states, and position themselves to insist on a new national settlement—one in which civil rights, economic justice, and sound public administration are respected across the nation

Marinello One Acts: Live at 11, and The Original Last Wish Baby

Two one act plays performed at John Carroll University in February of 1999.https://collected.jcu.edu/plays/1111/thumbnail.jp

Observed Binary Fraction Sets Limits on the Extent of Collisional Grinding in the Kuiper Belt

The size distribution in the cold classical Kuiper belt can be approximated by two idealized power laws: one with steep slope for radii R>R* and one with shallow slope for R<R*, where R*~25-50 km. Previous works suggested that the SFD roll-over at R* can be the result of extensive collisional grinding in the Kuiper belt that led to the catastrophic disruption of most bodies with R<R*. Here we use a new code to test the effect of collisions in the Kuiper belt. We find that the observed roll-over could indeed be explained by collisional grinding provided that the initial mass in large bodies was much larger than the one in the present Kuiper belt, and was dynamically depleted. In addition to the size distribution changes, our code also tracks the effects of collisions on binary systems. We find that it is generally easier to dissolve wide binary systems, such as the ones existing in the cold Kuiper belt today, than to catastrophically disrupt objects with R~R*. Thus, the binary survival sets important limits on the extent of collisional grinding in the Kuiper belt. We find that the extensive collisional grinding required to produce the SFD roll-over at R* would imply a strong gradient of the binary fraction with R and separation, because it is generally easier to dissolve binaries with small components and/or those with wide orbits. The expected binary fraction for R<R* is <0.1. The present observational data do not show such a gradient. Instead, they suggest a large binary fraction of ~0.4 for R=30-40 km. This may indicate that the roll-over was not produced by disruptive collisions, but is instead a fossil remnant of the KBO formation process.Comment: The Astronomical Journal, in pres