Polymorphous Public Law Litigation: The Forgotten History of Nineteenth Century Public Law Litigation

Recent debates about popular constitutionalism and judicial supremacy have focused on the question of who interprets the Constitution. This article reframes the debate by asking what legal sources courts apply to protect individual rights from government infringement. Throughout the nineteenth century, federal courts applied a mix of international law, statutes and common law to protect fundamental rights and restrain government action. This article uncovers the forgotten history of nineteenth century public law litigation.Professors Post and Siegel have advocated “policentric constitutional interpretation,” wherein the Supreme Court shares authority for constitutional interpretation with other actors. By analogy, this article introduces the concept of “polymorphous public law litigation.” Under the polymorphous model, instead of fixating on constitutional law as the dominant public law discourse, courts apply international law, statutes, and common law — and occasionally constitutional law — to decide public law controversies. The article demonstrates that nineteenth century federal courts applied a polymorphous model of public law litigation.During the twentieth century, the polymorphous model was supplanted by a constitutionalized model of public law litigation, wherein courts rely primarily on constitutional law to decide public law cases. The process of constitutionalization exacerbated the tension between judicial review and popular sovereignty. When the Supreme Court applies constitutional law to decide a case, the Court does not merely decide the case; it also creates or modifies a legal rule that is not subject to revision by legislative majorities. In contrast, when the Court applies other types of law, Congress or state legislatures retain the power to modify the controlling legal rule. Hence, revival of a polymorphous model would help mitigate the tension between judicial review and popular sovereignty

Should Google's Secret Sauce Be Organic?

This commentary discusses the European antitrust investigation into Google and the international implications of the case. It focuses on Google's alleged dominance and the allegations concerning Google’s self-preferencing of its Google Shopping results on general web search result pages, which form the subject matter of the Statement of Objections that the Commission sent on 15 April 2015. The EU Commission's international jurisdiction to prescribe is found to be unproblematic. However, the tendency towards overenforcement resulting from the cumulation of national and supranational investigations by competition authorities worldwide counsels caution in borderline cases. And Google is a borderline case. While it seems possible to construct a story of dominance and consumer harm, the paper doubts Google's ability to act to an appreciable extent independently of its competitors and customers. Ultimately, this is an empirical question, and the Commission may have sufficient evidence at its disposal. However, the publicly available evidence does not seem to support a finding of dominance, despite Google's high share of user searches. A finding of abuse would require changing the goalposts: one would have to accept that instead of a constructive refusal to deal, it is already abusive if services are not provided to third parties on identical conditions, or that instead of requiring coercion of consumers to acquire a tied product or service, it is already abusive if consumers are merely nudged to preferring the vertically integrated firm's products. These changes would amount to a paradigm change. Traditionally, competition is to force producers to be responsive to consumer preferences. Consumer choices are taken to reveal their preferences unless coercion can be shown. Allowing intervention already below the threshold of coercion, when consumers are merely nudged to make particular choices, risks substituting the competition authority's assessment for consumer preferences

Predictors of overall survival following surgical resection of small cell lung cancer

The American Association for Thoracic Surgery 100th Annual Meetin