INTRODUCTION
TRANSGRESSIVE CAREGIVING
Laura T. Kessler
Family caregiving can be a form of political resistance or expression, especially when done by people ordinarily denied the privilege of family privacy by the state. Feminist and queer legal theorists have, for the most part, overlooked this aspect of caregiving, regarding unpaid family labor as a source of gender-based oppression or as an undervalued public commodity benefiting children. This Article addresses this gap in the feminist and queer legal theory literature, demonstrating the way that family caregiving can be a liberating practice through a detailed historical analysis of the law regulating the sexuality, reproduction, and parenting of African Americans, gay people, and straight men. The story of transgressive care presented in this Article is particularly relevant to the present debates in our country over same-sex marriage and welfare. Because political expression is a fundamental value protected by our Constitution, recognizing the political significance of transgressive caregiving adds a new justification for supporting the care practices of transgressive caregivers, while also providing a conceptual basis for limiting unwanted state intervention into their families. By revealing how extended care networks and minority communities are coconstitutive, this Article also invites us to fundamentally rethink the way in which law regulates families in a wide range of areas, such as child custody, foster care, and adoption.
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EXPERIMENTS ON THE EFFECTS OF COSTSHIFTING, COURT COSTS, AND DISCOVERY ON THE EFFICIENT SETTLEMENT OF TORT CLAIMS
Laura Inglis, Kevin McCabe, Steve Rassenti, Daniel Simmons, Erik Tallroth
Imagine a world in which the effects of a policy change could be tested in advance. Unintended consequences could be accounted for, mistakes corrected, and new proposals evaluated—all without the tremendous costs of a real-world trial. Experimental economics, pioneered by 2002 Nobel Laureate Vernon Smith, provides researchers with innovative techniques for determining the effects of policy changes ex ante. Through the use of mechanisms designed to capture the incentive structures of real-world environments, experimenters can reproduce and analyze decisionmaking contexts. In addition, benchmark comparisons can be made, and controlled replication becomes possible. Experiments cannot perfectly represent the real world, of course, but they allow researchers to test the “what ifs” of public policy at a fraction of the cost of real-world trials. As such, they provide a valuable tool for evaluating potential reforms.
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ENTRANCE RAMPS, TOLLS, AND EXPRESS LANES—PROPOSALS FOR DECREASING TRAFFIC CONGESTION IN THE PATENT OFFICE
Kristen Osenga
Although granted to an inventor or group of inventors, patents bestow benefits on at least two separate groups. The inventor or his assignee benefits from the reward of the limited monopoly conferred by a patent, allowing him to exclude others from making, using, or selling a product or process that is covered by the patent. Society, the second beneficiary, profits from the public disclosure of new technology—a disclosure which advances scientific progress and serves to define boundaries around which competitors must design. While the benefit afforded to society seems readily apparent, the extent to which the patentee actually benefits, at least under a traditional view of patent law, may be greatly exaggerated.
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THE JUSTICE OF ADMINISTRATION: JUDICIAL RESPONSES TO EXECUTIVE CLAIMS OF INDEPENDENT AUTHORITY TO INTERPRET THE CONSTITUTION
Brian Galle
In the United States now there is a gap between what the public expects of its President and how the courts treat executive officers. Presidents, of course, like to declare that elections are about “values,” and one supposes they would not keep saying so unless a fair portion of the electorate agreed. Even legal academics increasingly say that the executive may be the best place for protecting certain constitutional values, like federalism, or more generally for representing national norms of justice above the more parochial concerns of congressmen.
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SAVING OTTER TAIL: THE ESSENTIAL FACILITIES DOCTRINE AND ELECTRIC POWER POST-TRINKO
Joseph R. Coker
As with other network-based industries, regulation of electric power continues to evolve and embrace market-based reforms. These reforms include the Federal Energy Regulatory Committee’s (FERC) expanded regulatory authority to mandate open access to electric power transmission infrastructure and to force vertically integrated electric power wholesalers/transmitters to “wheel” power of their competitors. The continuing changes in the wholesale electric power market’s regulatory scheme have fueled a discussion over the role of antitrust law in the industry. Similarly, deregulatory changes in other regulated industries, such as telecommunications, have spawned a similar debate.
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CLEARING THE AIR: USE OF CHEVRON’S STEP ONE TO INVALIDATE EPA’S EQUIPMENT REPLACEMENT PROVISION
Charles F. Mills III
As one of the first major pieces of legislation enacted to address the country’s environmental resources, one might expect that all the wrinkles of the Clean Air Act (CAA) would be ironed out thirty-five years after its passing; however, the CAA continues to be perhaps the most confounding and complex environmental legislation ever drafted. From the electricity that powers our light bulbs to the pulp mill that generates the materials used to create the paper on which this Note appears, it is difficult, if not impossible, to think of a process or item that the CAA has not impacted in some manner.
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CAN LAW AND ECONOMICS BRING THE FUNK . . . OR EFFICIENCY?: A LAW AND ECONOMICS ANALYSIS OF DIGITAL SAMPLING
Ryan C. Grelecki
When that first hook from Ice Ice Baby comes over the speakers, it is unmistakable for almost an entire generation. Those first few notes (dingdingding duhdah dingding . . . ) immediately cause many folks to “stop, collaborate, and listen.”1 The problem with identifying those sounds with Vanilla Ice is that they were not created by him or his discjockey (DJ), but rather by David Bowie and Queen in their song Under Pressure. The Ice Ice Baby versus Under Pressure comparison is an example of digital sampling and the confusion it potentially causes.
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