Education Moulds

Tim Wu and Derek Slater (Columbia University – Columbia Law School and Google, Inc.) have posted Homes with Tails on SSRN.  Here is the abstract:

America’s communications infrastructure is stuck at a copper wall. For the vast majority of homes, copper wires remain the principal means of getting broadband services. The deployment of fiber optic connections to the home would enable exponentially faster connections, and few dispute that upgrading to more robust infrastructure is essential to America’s economic growth. However, the costs of such an upgrade are daunting for private sector firms and even for governments. These facts add up to a public policy challenge.

Our intuition is that an innovative model holds unrealized promise: household investments in fiber. Consumers may one day purchase and own fiber connections that run from their homes. They would then be able to connect to a variety of service providers, including today’s Internet, television, and telephone services, as well as ultra-bandwidth intensive services of the future. Consumers would have the opportunity not only to get a fast broadband connection, but also benefit from greater competition and lower prices in the retail service market.

And here is a bit more from Derek’s post on the paper:

We call this property model “Homes with Tails,” for the fiber would
form part of the property right in the home. Key facets of our approach
include:

1. A “condominium” model for fiber ownership, in which individual
strands of fiber are sold to consumers, while maintenance and other
collective needs are managed jointly.

2. Private firms and municipalities could consider selling fiber connections based on this model; and

3. Governments could consider using various mechanisms to support
consumer purchases, including a tax credit to homeowners or renters who
purchase a broadband connection.

The idea of customer-owned fiber may seem odd, but it is important
to remember that many items that consumers buy today would have seemed
very strange not long ago. Until the personal computer, a computer was
something that only large companies owned. For decades, telephones were
available only for lease, not for purchase. Home fiber could be the
next technology that moves into the realm of consumer property.

That said, the goal of this paper is rather limited: to outline what
customer-owned fiber might look like and suggest why it is worth
investigating further. We do not suggest that this model is the panacea
for broadband policy challenges; rather, it might serve as part of a
broader solution. Furthermore, there are many empirical questions and
obstacles to successful implementation that cannot be fully evaluated
at this time. In particular, no market for consumer purchase of fiber
currently exists, and there is a collective action problem in deploying
a network of this sort. The only way to truly test this model’s
feasibility is to attempt to implement it. Below, we describe one trial
that is already ongoing in Ottawa, Canada, and more experiments of this
kind would provide important insights.

In the end, the intuition behind this paper is as old as property
theory: that people will spend more on and value more that which they
own.

Very interesting idea–recommended!

Source: Lawrence Solum

Tim Wu and Derek Slater (Columbia University – Columbia Law School and Google, Inc.) have posted Homes with Tails on SSRN.  Here is the abstract:

America’s communications infrastructure is stuck at a copper wall. For the vast majority of homes, copper wires remain the principal means of getting broadband services. The deployment of fiber optic connections to the home would enable exponentially faster connections, and few dispute that upgrading to more robust infrastructure is essential to America’s economic growth. However, the costs of such an upgrade are daunting for private sector firms and even for governments. These facts add up to a public policy challenge.

Our intuition is that an innovative model holds unrealized promise: household investments in fiber. Consumers may one day purchase and own fiber connections that run from their homes. They would then be able to connect to a variety of service providers, including today’s Internet, television, and telephone services, as well as ultra-bandwidth intensive services of the future. Consumers would have the opportunity not only to get a fast broadband connection, but also benefit from greater competition and lower prices in the retail service market.

And here is a bit more from Derek’s post on the paper:

We call this property model “Homes with Tails,” for the fiber would
form part of the property right in the home. Key facets of our approach
include:

1. A “condominium” model for fiber ownership, in which individual
strands of fiber are sold to consumers, while maintenance and other
collective needs are managed jointly.

2. Private firms and municipalities could consider selling fiber connections based on this model; and

3. Governments could consider using various mechanisms to support
consumer purchases, including a tax credit to homeowners or renters who
purchase a broadband connection.

The idea of customer-owned fiber may seem odd, but it is important
to remember that many items that consumers buy today would have seemed
very strange not long ago. Until the personal computer, a computer was
something that only large companies owned. For decades, telephones were
available only for lease, not for purchase. Home fiber could be the
next technology that moves into the realm of consumer property.

That said, the goal of this paper is rather limited: to outline what
customer-owned fiber might look like and suggest why it is worth
investigating further. We do not suggest that this model is the panacea
for broadband policy challenges; rather, it might serve as part of a
broader solution. Furthermore, there are many empirical questions and
obstacles to successful implementation that cannot be fully evaluated
at this time. In particular, no market for consumer purchase of fiber
currently exists, and there is a collective action problem in deploying
a network of this sort. The only way to truly test this model’s
feasibility is to attempt to implement it. Below, we describe one trial
that is already ongoing in Ottawa, Canada, and more experiments of this
kind would provide important insights.

In the end, the intuition behind this paper is as old as property
theory: that people will spend more on and value more that which they
own.

Very interesting idea–recommended!

Source: Lawrence Solum

Robert Chesney (Wake Forest University – School of Law) has posted Terrorism, Criminal Prosecution, and the Preventive Detention Debate (South Texas Law Review, 2009) on SSRN.  Here is the abstract:

In
the aftermath of the 2008 election, change is in the air with respect
to counterterrorism law and policy. The Obama administration almost
certainly will terminate the military commission system, and it likely
will take steps at least to reduce reliance on the underlying practice
of long-term military detention. Against this backdrop, the debate
regarding how best to reform detention policy has sharpened. Some
contend that federal criminal prosecution should supply whatever
long-term detention capacity may be required, while others contend that
it would be better to design a detention system (such as a "national
security court") specifically tailored to the problem of terrorism
prevention.

I do not propose to resolve this debate here.
Rather, my aim in this symposium article (also to appear as a chapter
in a forthcoming collected volume published by Brookings) is to enrich
the debate with a candid and precise assessment of the capacities and
limitations of the federal criminal justice system as it relates to
terrorism, with a particular focus on the prevention scenario.

Part
I examines a variety of charges available to prosecutors in that
scenario. I conclude that these charges are far more
prevention-oriented than critics often admit, though I also note a
handful of limitations on their scope. Most significantly, perhaps, I
draw attention to limits on the extraterritorial scope of the two
"material support" laws as they stood prior to amendment in 2001 and
2004, respectively. That caveat aside, the scope of the charges
available to prosecutors today compares well to the grounds for
detention in the military detention system, and very favorably to the
charges available in the military commissions system.

Part II
surveys several of the procedural and evidentiary considerations that
critics have cited as grounds to doubt the ability of the criminal
justice system to provide an adequate capacity to incapacitate
suspected terrorists. By and large, my analysis concurs with the
much-cited "white paper" that Richard Zabel and James Benjamin recently
produced for Human Rights First, which is to say that I agree with them
that many of the leading concerns in this area are overstated. I differ
from them to some extent, however, insofar as I emphasize three sets of
procedural safeguards that do tend to limit the reach of the criminal
justice system in comparison to existing or proposed alternatives. Each
is a familiar and much-lauded component of the fairness that
characterizes our criminal justice system, and none should be set aside
lightly. Specifically, I refer to (i) mandatory disclosure concepts
(e.g., Brady and Giglio); (ii) Confrontation Clause (and hearsay)
concerns (a topic which subtly imports the troubled question of
interrogation methods); and (iii) the burden of proof itself. These are
the features that do the most work in accounting for the difference in
reach among the criminal justice system and its competitors, and I
suggest that they should be the focus of the debate going forward.

Because
no one seriously doubts that criminal prosecution will continue to be
an important tool of counter-terrorism policy going forward-whatever
becomes of military detention and proposals for alternative detention
systems-I conclude in Part III with a discussion of modest steps
Congress might take to optimize the criminal justice system for the
task of prevention-oriented prosecution. Criticisms and comments are
welcome at robert.chesney@wfu.edu.

Source: Lawrence Solum

Robert Chesney (Wake Forest University – School of Law) has posted Terrorism, Criminal Prosecution, and the Preventive Detention Debate (South Texas Law Review, 2009) on SSRN.  Here is the abstract:

In
the aftermath of the 2008 election, change is in the air with respect
to counterterrorism law and policy. The Obama administration almost
certainly will terminate the military commission system, and it likely
will take steps at least to reduce reliance on the underlying practice
of long-term military detention. Against this backdrop, the debate
regarding how best to reform detention policy has sharpened. Some
contend that federal criminal prosecution should supply whatever
long-term detention capacity may be required, while others contend that
it would be better to design a detention system (such as a "national
security court") specifically tailored to the problem of terrorism
prevention.

I do not propose to resolve this debate here.
Rather, my aim in this symposium article (also to appear as a chapter
in a forthcoming collected volume published by Brookings) is to enrich
the debate with a candid and precise assessment of the capacities and
limitations of the federal criminal justice system as it relates to
terrorism, with a particular focus on the prevention scenario.

Part
I examines a variety of charges available to prosecutors in that
scenario. I conclude that these charges are far more
prevention-oriented than critics often admit, though I also note a
handful of limitations on their scope. Most significantly, perhaps, I
draw attention to limits on the extraterritorial scope of the two
"material support" laws as they stood prior to amendment in 2001 and
2004, respectively. That caveat aside, the scope of the charges
available to prosecutors today compares well to the grounds for
detention in the military detention system, and very favorably to the
charges available in the military commissions system.

Part II
surveys several of the procedural and evidentiary considerations that
critics have cited as grounds to doubt the ability of the criminal
justice system to provide an adequate capacity to incapacitate
suspected terrorists. By and large, my analysis concurs with the
much-cited "white paper" that Richard Zabel and James Benjamin recently
produced for Human Rights First, which is to say that I agree with them
that many of the leading concerns in this area are overstated. I differ
from them to some extent, however, insofar as I emphasize three sets of
procedural safeguards that do tend to limit the reach of the criminal
justice system in comparison to existing or proposed alternatives. Each
is a familiar and much-lauded component of the fairness that
characterizes our criminal justice system, and none should be set aside
lightly. Specifically, I refer to (i) mandatory disclosure concepts
(e.g., Brady and Giglio); (ii) Confrontation Clause (and hearsay)
concerns (a topic which subtly imports the troubled question of
interrogation methods); and (iii) the burden of proof itself. These are
the features that do the most work in accounting for the difference in
reach among the criminal justice system and its competitors, and I
suggest that they should be the focus of the debate going forward.

Because
no one seriously doubts that criminal prosecution will continue to be
an important tool of counter-terrorism policy going forward-whatever
becomes of military detention and proposals for alternative detention
systems-I conclude in Part III with a discussion of modest steps
Congress might take to optimize the criminal justice system for the
task of prevention-oriented prosecution. Criticisms and comments are
welcome at robert.chesney@wfu.edu.

Source: Lawrence Solum

George R. LaNoue and Kenneth L. Marcus (University of Maryland, Baltimore County and CUNY Baruch College School of Public Affairs) have posted ‘Serious Consideration’ of Race-Neutral Alternatives in Higher Education on SSRN.  Here is the abstract:

What does it mean for a college or university to "seriously consider" race-neutral alternatives? Contemporary affirmative action jurisprudence requires post-secondary institutions to address this question, yet does little to answer it. By requiring universities to conduct "serious, good-faith consideration of workable race-neutral alternatives" before engaging in non-remedial race-conscious activities-but without specifying the requisite nature and scope of this "consideration" – the Court has left many institutions to wonder what is needed to satisfy the Court. Commentators have explored various approaches, including class-rank plans, socioeconomic preferences, and lottery assignment plans. What courts and commentators have largely failed to explore, however, is the basic methodological question: What, specifically, does it mean to give serious consideration to these alternatives? This Article argues that basic principles of program evaluation provide clear standards and criteria for serious program consideration, and that application of these methodologies is mandated by the Court’s decisions. As litigation will increasingly focus on narrow tailoring, administrators’ failure to apply proper program analysis to race-neutral alternatives could jeopardize many diversity programs. Moreover, the absence of requisite program analysis of race-neutral alternatives will lead to uncertainty, confusion, and disregard for the law. Thus, this Article supplies a framework for identifying meaningful program evaluation standards that can enable universities to comply with the requirements set forth in affirmative action jurisprudence.

Source: Lawrence Solum

George R. LaNoue and Kenneth L. Marcus (University of Maryland, Baltimore County and CUNY Baruch College School of Public Affairs) have posted ‘Serious Consideration’ of Race-Neutral Alternatives in Higher Education on SSRN.  Here is the abstract:

What does it mean for a college or university to "seriously consider" race-neutral alternatives? Contemporary affirmative action jurisprudence requires post-secondary institutions to address this question, yet does little to answer it. By requiring universities to conduct "serious, good-faith consideration of workable race-neutral alternatives" before engaging in non-remedial race-conscious activities-but without specifying the requisite nature and scope of this "consideration" – the Court has left many institutions to wonder what is needed to satisfy the Court. Commentators have explored various approaches, including class-rank plans, socioeconomic preferences, and lottery assignment plans. What courts and commentators have largely failed to explore, however, is the basic methodological question: What, specifically, does it mean to give serious consideration to these alternatives? This Article argues that basic principles of program evaluation provide clear standards and criteria for serious program consideration, and that application of these methodologies is mandated by the Court’s decisions. As litigation will increasingly focus on narrow tailoring, administrators’ failure to apply proper program analysis to race-neutral alternatives could jeopardize many diversity programs. Moreover, the absence of requisite program analysis of race-neutral alternatives will lead to uncertainty, confusion, and disregard for the law. Thus, this Article supplies a framework for identifying meaningful program evaluation standards that can enable universities to comply with the requirements set forth in affirmative action jurisprudence.

Source: Lawrence Solum

J. Robert Brown Jr. (University of Denver Sturm College of Law) has posted Returning Fairness to Executive Compensation on

SSRN.  Here is the abstract:

The
current waive of turmoil in the financial markets has cast attention on
the problem of executive compensation. Companies that have failed or
disappeared in shot-gun mergers have nonetheless paid exorbitant sums
to officers who arguably played a substantial role in their demise. In
response, Congress for the first time established federal standards for
determining compensation, including clawbacks and limits on golden
parachutes.

The congressional efforts, although mild, represent
a deep frustration with the system used by the Delaware courts in
assessing executive compensation. With the CEO on the board, executive
compensation has traditionally been examined under the duty of loyalty.
Through legal legerdemain, the Delaware courts have accorded the
decisions the all but insurmountable protection of the business
judgment rule, requiring only that the board contain a majority of
"independent directors." By largely reducing the test to a rote head
count, the courts did little to ensure that compensation decisions were
unaffected by the interested influence. At the same time, the courts
did little to ensure that independent directors were in fact
independent.

The paper provides some suggested reforms. The
efficacy of the process must be improved. Most importantly, however,
fairness needs to be returned to the analysis. Only with some
obligation to show the fairness of the compensation decision with the
interests of shareholder be adequately protected.

I was intrigued by the abstract, and the question it raises: "What constitutes fairness?"  Of course, from the point of view of corporate law, "fairness" is "fairness to stockholders" and not "fairness to other employees."  In theory, a fair salary is the salary that would have been paid if the board of directors had been motivated to maximize shareholder value and entered into an arms-length transaction, but the question is "How could that be determined by a court?"  The footnote on "entire fairness," the doctrinal approach that Brown suggests could be adapted to this purpose reads as follows:

 Cinerama, Inc. v. Technicolor, Inc., 663 A.2d 1156, 1163 (Del. 1995)(“In this case, because the contested
action is the sale of a company, the ‘fair price’ aspect of an entire fairness analysis requires the board of
directors to demonstrate ‘that the price offered was the highest value reasonably available under the
circumstances.’")

But this would seem to beg the question–how would a court determine "the lowest salary reasonably available under the circumstances" without know the worth of the executive to the corporation?

Source: Lawrence Solum

Kenneth A. Klukowski has posted Citizen Gun Rights: Incorporating the Second Amendment Through the Privileges or Immunities Clause on SSRN.  Here is the abstract:

After District of Columbia v. Heller, the next question the Supreme Court must address regarding the right to keep and bear arms is whether the Second Amendment is incorporated to the states through the Fourteenth Amendment. The Court should incorporate the Second Amendment through the Privileges or Immunities Clause instead of the Due Process Clause. Current due process jurisprudence would create significant legal and public policy difficulties if the Second Amendment were incorporated through the Due Process Clause. The Court should therefore obviate those problems by incorporating through the Privileges or Immunities Clause. Contrary to common misconceptions, the Second Amendment could be incorporated through Privileges or Immunities without overruling the Slaughter-House Cases, because the right to keep and bear arms is a right inhering to federal citizenship.

For my take, see District of Columbia v. Heller and Originalism.

Source: Lawrence Solum

Craig A. Stern (Regent University School of Law) has posted Another Sign from Hein: Does the Generalized Grievance Fail a Constitutional or a Prudential Test of Federal Standing to Sue?
(Lewis & Clark Law Review, Vol. 12, No. 4, December 2008) on SSRN.  Here is the abstract:

The Supreme Court seems to have shuttled the federal rule against hearing generalized grievances back and forth between a home in the Constitution and a home in the Court’s prudence. Hein v. Freedom from Religion Foundation, Inc., 127 S. Ct. 2553 (2007), stamped the latest forwarding address.

Where the generalized grievance finds its home orients the whole map to justiciability. The much controverted question of the sort of injury required for standing to sue may find answers in the location of the generalized grievance test. The prudential tests of standing focus upon the legal theory a party argues. The constitutional test of standing focuses upon the harm a party suffers. If the generalized grievance test retains its focus upon legal theory even as the test is drawn into constitutional standing doctrine, the injury-in-fact of that doctrine moves from simple harm towards the old invasion-of-legal-interest reminiscent of standing as a test of merits and not of justiciability.

This Article tracks the generalized grievance, exploring along the way the whole terrain of standing, ripeness, and mootness. (And in so doing, the Article finds that constitutional standing has more to do with the meaning of "judicial Power" than with the meaning of "Cases" and "Controversies.")

Source: Lawrence Solum

Craig A. Stern (Regent University School of Law) has posted Another Sign from Hein: Does the Generalized Grievance Fail a Constitutional or a Prudential Test of Federal Standing to Sue?
(Lewis & Clark Law Review, Vol. 12, No. 4, December 2008) on SSRN.  Here is the abstract:

The Supreme Court seems to have shuttled the federal rule against hearing generalized grievances back and forth between a home in the Constitution and a home in the Court’s prudence. Hein v. Freedom from Religion Foundation, Inc., 127 S. Ct. 2553 (2007), stamped the latest forwarding address.

Where the generalized grievance finds its home orients the whole map to justiciability. The much controverted question of the sort of injury required for standing to sue may find answers in the location of the generalized grievance test. The prudential tests of standing focus upon the legal theory a party argues. The constitutional test of standing focuses upon the harm a party suffers. If the generalized grievance test retains its focus upon legal theory even as the test is drawn into constitutional standing doctrine, the injury-in-fact of that doctrine moves from simple harm towards the old invasion-of-legal-interest reminiscent of standing as a test of merits and not of justiciability.

This Article tracks the generalized grievance, exploring along the way the whole terrain of standing, ripeness, and mootness. (And in so doing, the Article finds that constitutional standing has more to do with the meaning of "judicial Power" than with the meaning of "Cases" and "Controversies.")

Source: Lawrence Solum