Vol. 101 Issue 6

This Note addresses both ad hoc and institutional arbitration. Three of the most prominent institutions for international commercial arbitration are the International Chamber of Commerce (ICC) in Paris; the International Center for Dispute Resolution (ICDR), a branch of the American Arbitration Association based in New York; and the London Court of International Arbitration (LCIA). Ad hoc arbitration is often conducted under the UNCITRAL Rules. This Note will examine the effect of third-party funding in light of the arbitral rules of these four bodies: the ICC, ICDR, LCIA, and UNCITRAL.
Although the discussion in this Note is based primarily on the rules for international commercial arbitration, the analysis applies to domestic arbitration as well. The rise of a third-party funding industry in the United States, for example, will likely cause more arbitrations conducted under the AAA’s Commercial Arbitration Rules to face conflicts of interest issues. Indeed, the American Bar Association already has begun to analyze comprehensively the professional responsibility issues arising from third-party funding. The analysis in this Note focuses on international arbitration, but the underlying conflicts issues and the suggested proposal can be applied to domestic arbitral rules as well.

The rapid development of private land in the United States has prompted a corresponding increase in the use of conservation easements as a vital element of U.S. land preservation and conservation policy. The federal government incentivizes these easements through an income-tax deduction for donations of qualifying easements to nonprofit land trusts. There are many advantages to the current structure of the tax incentive: it allows for local control of easement decisions, minimizes certain administrative costs of the program, and does not subject conservationists to reliance on the annual congressional appropriations process for easement funding. Despite these benefits, the tax deduction fails to properly incentivize conservation in some important ways. The nature of easements as partial interests in property makes valuation difficult, often resulting in an allocation of tax benefits based on lost economic development potential rather than on conservation value. Donee organizations often lack sufficient resources to enforce their easements in perpetuity, and claimed deductions are not always effectively monitored. To preserve the benefits of the current incentive structure while mitigating the primary concerns associated with the deduction, this Note proposes imposing a variable annual cap on the value of easements that may be accepted by individual donee land trusts. Structured like a financial capitalization requirement, this annual cap would increase in proportion to a land trust’s financial capacity to enforce its easements, thereby addressing each of the primary drawbacks associated with the current deduction while still retaining its crucial role as a primary federal incentive for land conservation.

This Article explains that, viewed in light of the evolution of the derivative work concept in the copyright revision process, the exclusive right to prepare derivative works is narrower in scope and more bounded than commentators have often feared. The Article considers characteristics of the nine exemplary derivatives in the statutory definition and explains why they should inform a sound interpretation of the last clause in the definition. By including these nine examples, Congress intended to provide guidance about the types of derivatives covered by this right. To be consistent with the text of the statute, the legislative history, and the constitutional purpose of copyright, derivative work liability should only be imposed under the last clause of the definition if the plaintiff’s claim is analogous to one or more of the exemplary derivatives in the statutory definition. The Article then discusses three plausible justifications for the grant of the derivative work right that, properly understood, constrain its reach. Next, the Article considers several provisions and doctrines of U.S. copyright law that further limit the reach of the derivative work right. The statutory exclusion of useful articles from the scope of copyright protection, for instance, meaningfully limits the derivative work right in a manner consistent with the constitutional purpose of copyright law and policies favoring ongoing innovation and competition. Fair use protects free-expression interests of next-generation authors, along with the first-sale limit, which protects privacy and autonomy interests of those who have purchased copies of copyrighted works. Finally, the Article discusses a handful of derivative-use cases that have given overbroad interpretations to the derivative work right and explains why these decisions are unsound.

To better arm the boots-on-ground combat soldier engaged in COIN (counterinsurgency) operations, leaders at every step in the chain of command must reframe their ROE (rules of engagement) policies to, first, acknowledge the need for nuanced, flexible rules in the complex COIN environment and, second, formally acknowledge the definite preference of COIN leaders against the use of force in COIN campaigns.
This Note proposes such a reframing, arguing that the United States military should adopt a “standards of engagement” regime, whereby soldiers’ use-of-force actions are governed by general, outcome-based “standards,” not specific, prescriptive “rules.” This Note then recommends augmenting these standards of engagement with “codes of practice,” or nonmandatory, general guidelines designed to gently nudge the soldier’s decision-making process, constantly reminding the soldier of the relevant “counterinsurgency paradoxes” that have already been disseminated in the COIN doctrine adopted by the United States Army and Marine Corps.
Explaining the rationale behind these intertwined recommendations is the purpose of this Note. To lay the groundwork for the discussion of the typical problems and possible solutions for modern ROE, Part I of this Note will briefly describe what COIN is and how it differs from conventional operations. The focus of this Part’s analysis will be on differences that significantly affect how leaders should think about their ROE policies. Part II of this Note will take the discussion a step further, explaining what ROE are, how they are typically developed, and problems that commonly plague the ROE policies used in COIN campaigns. Finally, Part III of this Note will use these COIN lessons and ROE problems to develop recommendations for the improvement of future COIN ROE policies, suggesting two practical ROE modifications that promise to influence the use-of-force decision-making process for both the strategic leader and the individual soldier enmeshed in an often ugly, always dangerous COIN fight.

This Essay begins by laying out some of the core themes of Georgetown School of antitrust thinking. Overall, the Georgetown School is nondoctrinaire, flexible, and evidence based. It is strongly associated with government institutions without being explicitly interventionist in orientation. It takes a substantially different approach to “Type 1 error” than has prevailed for the last several decades. And it seeks to actively engage the problems presented by new forms of competition using the very robust tools of traditional antitrust analysis. Next we will examine select investigations, enforcement actions, and public statements from the emergence of the Georgetown School during the Clinton Federal Trade Commission through to today’s Obama Antitrust Division that reflect the application of Georgetown School thinking in a variety of policy areas, from vertical restraints to mergers to antitrust immunities. These examples illustrate less a unified field theory of antitrust than an effort (1) to capture and build upon an emerging, evidence-based consensus on a variety of core antitrust topics and (2) to contribute to the development of strong public institutions that have both the intellectual capital and the will to protect competition and therefore consumer welfare.

This Article’s broader contention is that advances in neuroscience research will eventually end special education as we know it. In short, neuroscience research is challenging a number of important assumptions that undergird special education law, including, for example, the assumption that there is a real difference between students with a specific learning disability, who are covered by the law, and those who are simply “slow,” who are not covered. As central assumptions about cognitive functioning become less and less tenable, the current structure of special education will necessarily become more vulnerable.
This broader contention might seem overly speculative, perhaps even alarmist. Interestingly enough, however, special education law and policy are already changing in a way that could accommodate the advances in neuroscience predicted here. Amendments to IDEA in 1997 and 2004 have introduced what could be called an “expand-to-reduce” approach, under which some additional services are initially offered to all struggling students, in the hope that the number of students ultimately deemed eligible for “special” education will be reduced. Although the steps so far have been tentative and limited, and more changes would have to be made, a plausible path forward has already been marked. This Article suggests that these still-nascent policy changes will likely grow over time and eventually transform special education, at least for the large number of students with learning disabilities.
In arguing that federal special education law will have to change, this Article joins a growing chorus in favor of reforming special education. Yet most critiques of special education operate on the premise that too many without “real” disabilities are enrolled. This Article takes a very different view and contends that the problem may be the opposite: there are too many students not in special education who do, in fact, have real disabilities. But special education, and the education system as a whole, cannot afford to enroll all of them, which means that special education will have to change.