FEDERAL RULE OF CIVIL PROCEDURE 52(A) AS AN IDEOLOGICAL WEAPON?
Bryan L. Adamson
In this Article, the author explores Federal Rule of Civil Procedure 52(a) and standard of review choice to determine whether appellate judges can exploit the Rule’s terms to pursue ideological goals. The author examines the operative terms of Rule 52(a)—namely, “findings of fact,” “clear error,” and “documentary evidence”—and concludes that they are so malleable as to give appellate judges wide discretion in deciding whether clear error, de novo, or some other standard of review is to be applied. The Article then goes on to identify a fact typology appellate courts invoke which also enables them to circumvent Rule 52(a) and engage in de novo review of a trial court’s factual findings. The Article concludes that standard of review choices can serve as a prism through which to view a judge’s ideological predisposition, especially when those choices are made in an undisciplined, unprincipled manner. The author argues that appellate courts’ treatment of Rule 52(a) and fact typology can impair decisional legitimacy, administrative efficiency, and comity between the trial and appellate courts. As Rule 52(a)’s malleable character and fact typology serve important jurisprudential functions, the author makes several recommendations to clarify decisional rules as they apply to standard of review and to mitigate unwarranted perception of ideological bias in making judgments about the applicable standard of review.
THE USE AND MISUSE OF DISCLOSURE AS A REGULATORY SYSTEM
Paula J. Dalley
Over the past several decades, legislators and regulators have increasingly turned to disclosure schemes, rather than substantive regulation, to accomplish regulatory goals. Most of these schemes are either expressly or impliedly based on the disclosure-based regulatory system established by the securities acts, which is primarily intended to provide information to traders in an established market and thereby enhance the operation of the market. A secondary purpose of the securities acts is to alter the behavior of firms and individuals through the operation of the market. Other disclosure schemes usually have similar purposes, but they rarely operate in a market akin to the financial markets. As a result, the mechanism by which the disclosure scheme is expected to accomplish its purpose is often obscure. Where there is a specified mechanism for the operation of the disclosure system, it often fails to take account of the way individuals and firms process and react to information. This Article examines the purposes and operation of both securities disclosure and other disclosure schemes and the limitations on the usefulness of disclosure as a regulatory method. The Article then describes criteria for the use and design of disclosure systems as regulatory tools that take into consideration realistic benefits and costs of the disclosure regime.
THE RISE AND FALL OF PRIVATE SECTOR UNIONISM: WHAT NEXT FOR THE NLRA?
Jeffrey M. Hirsch; Barry T. Hirsch
In this Article, we ask whether the National Labor Relations Act, enacted over seventy years ago, can remain relevant in a competitive economy where nonunion employer discretion is the dominant form of workplace governance. The best opportunity for the NLRA’s continued relevance is the modification of its language and interpretation to enhance worker voice and participation in the nonunion private sector without imposing undue costs on employers. Examples of such reforms include narrowing the NLRA’s company union prohibition, implementing a conditional deregulation system that relies on consent by an independent employee association, changing the labor law default to some form of a nonunion work group, expanding state and local authority over labor relations, and encouraging NLRA protection for employee use of employer-owned Internet services. These legal innovations have the potential to be welfare-enhancing, as compared to outcomes likely to evolve under the current legal framework. Although the political likelihood of such changes is currently low, steps in this direction could result in an increased relevance for the NLRA in the modern economy.
THE SOCIAL COSTS OF TECHNOLOGICAL PROTECTION MEASURES
John A. Rothchild
The anticircumvention rules—which Congress enacted in 19981 to bolster the implementation of technological protection measures (TPMs) designed to prevent unauthorized use of copyright-protected materials—have been subjected to unrelenting criticism. In this Article I add another critical voice to the chorus, but from a new perspective. I argue not for modification or elimination of the rules, but rather for complementary legislation that corrects a feature of the rules that has until now been overlooked: implementing the technological protections that the anticircumvention rules promote imposes costs on persons who are not parties to the transactions that give rise to the costs. The fact that these harms are externalized leads to an oversupply of TPMs. Standard economic theory calls for a regulatory response that brings about a reduction in the use of TPMs to an efficient level. My proposal is to implement some such regulatory response.
“IF YOUR HAND CAUSES YOU TO SIN . . .”: FLORIDA’S CHEMICAL CASTRATION STATUTE MISSES THE MARK
On May 4, 2005, convicted Texas child molester Larry Don McQuay was released from prison. Again. McQuay, who had been a school bus driver in San Antonio, Texas, had been initially sentenced to eight years in prison for molesting a six-year-old boy in 1989. McQuay begged the state of Texas to surgically castrate him so that he would not repeat his crimes, which he admitted included molesting over 200 children. McQuay stated that when he looks at a child, “ ‘I see a sex object . . . . I hate the things that I do. I’m just scared that it’s going to happen. That’s why I want to get the surgery.’ ” His request was denied. McQuay’s letters from prison prompted the citizens’ organization, Justice for All, to help him raise the funds to obtain the surgery privately. Although the organization was successful in raising the funds, they could find no physician who was willing to perform the surgery.
RECLAIMING THE CLEAN WATER ACT: A NEW APPROACH TO WASTEWATER MANAGEMENT
The solution to finite pollution might be dilution, but the solution to massive pollution is reclamation and reuse. Today, the United States produces upwards of 5.3 million metric tons dry weight of sludge per year. In coastal areas alone, wastewater treatment plants discharge over 10 billion gallons of wastewater effluent per day. With waste of this magnitude being produced at an ever increasing rate, continued reliance on traditional waste management techniques poses a serious threat to human health and the environment.