JURISDICTION AS COMPETITION PROMOTION: A UNIFIED THEORY OF THE FCC’S ANCILLARY JURISDICTION
The FCC’s “ancillary jurisdiction” refers to the agency’s residual authority to regulate matters over which it lacks explicit statutory authority under the Communications Act of 1934. Because many of today’s most controversial and consequential policy debates involve new technologies not explicitly covered by that statute, the scope of the FCC’s ancillary jurisdiction has taken on a critical new importance in recent years. In particular, the future of Federal Internet policy depends on resolving the questions surrounding ancillary jurisdiction. In this Article, I provide a new theory of the FCC’s ancillary jurisdiction, arguing that it is best understood as an authority to promote market competition. More specifically, ancillary jurisdiction has primarily addressed and promoted competition in markets where vertical leveraging is a concern—particularly those involving legacy network infrastructure. My argument has both a positive and normative dimension. Descriptively, I argue that the competition-promotion framework provides the most persuasive and coherent account of the seemingly incoherent line of cases reviewing the FCC’s ancillary jurisdiction. Normatively, I argue that the FCC’s ancillary jurisdiction should be exercised in this manner, in large part to protect the doctrine’s viability in the face of increasing criticism and to shape it in a way that both promotes competition and limits agency capture.
DID THE COURT KILL THE TREASON CHARGE?: REASSESSING CRAMER V. UNITED STATES AND ITS SIGNIFICANCE
Paul T. Crane
On October 11, 2006, Adam Gadahn, also known as Azzam al- Amriki or “Azzam the American,” was indicted by a federal grand jury on charges of treason.1 The indictment alleged that Gadahn, an American citizen, “knowingly adhered to an enemy of the United States, namely, al-Qaeda, and gave al-Qaeda aid and comfort, within the United States and elsewhere, with intent to betray the United States.” This charge was based on Gadahn’s participation in several videotapes produced by al-Qaeda between October 2004 and September 2006, in which he appeared with al-Qaeda leaders Osama bin Laden and Ayman al-Zawahiri, espoused his support for the terrorist organization, praised the attacks of September 11th and the bombings in London and Madrid, and threatened future attacks against the United States. Notably, Gadahn was not in United States custody when the indictment was issued and currently remains at large.
UNDERSTANDING THE PARADOXICAL CASE OF THE VOTING RIGHTS ACT
The Voting Rights Act of 1965 is once again at the center of our long-standing debate over our historical commitment to the principle of political equality. This is a debate about both the scope of congressional power under the Reconstruction Amendments and contested substantive questions about how to best protect the right to vote. These are two distinct, yet familiar, strands to students of politics and constitutional law.
THE FORGOTTEN SOVEREIGNS
Our federal system includes 564 federally recognized American Indian nations, most of which have their own sovereign lands, governments, and court systems, and who interact every day with the state and federal systems. Yet most legal thought overlooks our sovereign Native American nations and legal heritage. Although much of American law and policy intersects tribal jurisdictions, such issues generally appear in the law school curriculum only in specialized, upper-level courses. This Article argues that the three-sovereign system should provide the fundamental framework for the United States legal system across the legal curriculum and provides several concrete examples for how to introduce it. It also argues that many law courses should touch upon how their disciplines impact tribal jurisdictions and their citizens.
PERCEPTION OVER REALITY: EXTENDING THE ADA’S CONCEPT OF “REGARDED AS” PROTECTION UNDER FEDERAL EMPLOYMENT DISCRIMINATION LAW
Craig Robert Senn
A head-scratching inconsistency currently exists in federal employment discrimination law. On the one hand, an employer is 100% liable under the Americans with Disabilities Act of 1990 (ADA) if it erroneously “regards” a person as having an actual “disability” and then discriminates based on this misperception. On the other hand, many courts have held that this “regarded as” protection does not extend to other federal employment discrimination laws, such as Title VII of the Civil Rights Act of 1964 (Title VII) and the Age Discrimination in Employment Act of 1967 (ADEA). In these jurisdictions, an employer is not liable at all under Title VII or the ADEA if it erroneously “regards” a person as (1) being of a certain race, color, religion, sex, or national origin or (2) being at least forty years old and then discriminates based on this misperception. According to these courts, this disparity in employee protection (and employer liability) is warranted because the ADA includes an express “regarded as” protection, while Title VII and the ADEA do not.
A TALE OF THREE STATES: EQUITABLE APPORTIONMENT OF THE APALACHICOLACHATTAHOOCHEE-FLINT RIVER BASIN
Alyssa S. Lathrop
In 1876, the head of the U.S. Geological Survey, Major John Wesley Powell, declared that west of the 100th meridian that divided the country, rainfall was scarce—“cooperative irrigation and an equitable system of water rights” would be required.1 By contrast, in the East, rainfall was plenty—people could grow anything without irrigation. In the East, there was so much water that those who lived there would never have to worry about water.
LITTLE VICTORIES: PROMOTING ARTISTIC PROGRESS THROUGH THE ENFORCEMENT OF CREATIVE COMMONS ATTRIBUTION AND SHARE-ALIKE LICENSES
Copyright law and its fundamental goals have long been considered a paradox in the United States. Essentially, our framework says that in order to promote growth and progress in the arts, the availability of creative works must be restricted from use by other creators. By treating creativity as property in this country, we have attempted to promote creation merely by assuring authors that their works will be afforded protections and rights from which only they can benefit. Many scholars have criticized this approach, arguing that creation cannot be treated like property and that the rigid boundaries of copyright law currently discourage, rather than foster, an overarching ideology of progress. This paradox left legal scholars and artists alike wondering, “Is there a better way?” Several years ago, this question was answered in the affirmative with the creation of the Creative Commons, a public licensing structure to be used in conjunction with current copyright laws.
ARMED AND LITIGIOUS: THE FLORIDA GUNS AT WORK LAW AND CONSTITUTIONAL SCRUTINY
This Note addresses the Northern District of Florida’s recent decision evaluating the constitutionality of Florida’s controversial “guns at work” law. In Florida Retail Federation, Inc. v. Attorney General, the court held that the provisions of the statute requiring businesses to allow customers to keep firearms in their cars were unconstitutional under the Equal Protection Clause, but upheld the constitutionality of the statute as applied to employees. Florida Retail is notable for three reasons. First, the case involves a unique intersection of property rights, legislative prerogatives, and statutory interpretation. Second, the court decided the case on rational basis equal protection grounds, which is noteworthy on its own, but particularly interesting because the court appears to have raised the equal protection argument sua sponte. Finally, there is some tension between the court’s determination that the statute is not ambiguous and its holding that the customer rights provision violated the Equal Protection Clause. This Note provides a short summary of the statute before addressing Chief Judge Hinkle’s opinions in the case.