Forthcoming: 2018.3


Articles


How is Competition Policy Coping with Atlantic Area Airline Markets?
Daniel Gifford (University of Minnesota)

Concentration in airline markets in both the U.S. and the EU is very high and has been for decades. Competition authorities on both sides of the Atlantic have nonetheless approved mergers and alliances that appear to increase the market power of the participating firms. How effective is domestic and international airline competition in the Atlantic area today, and how effective is prevailing competition policy? Is policy conflict likely? These questions are explored in the context of a major industry that has historically been more nationally protected and controlled than perhaps any other outside of the defense sector. Is the industry’s performance likely to improve or diminish? The authors recently concluded a comprehensive study of U.S. and EU competition policies, The Atlantic Divide in Antitrust, which stresses critical differences between the two policy regimes as well as some similarities. As industries increasingly globalize, coordination of competition policies becomes ever more important, and the potential for conflict – the extraterritorial veto power national authorities have over foreign practices that affect the home market – cannot be ignored. We conclude that, despite some very different underlying assumptions and enforcement systems, competition authorities on both sides of the Atlantic appear to have developed a similar and compatible approach to the airlines that may lead to improved social performance without serious policy conflict.

Under the Radar: The Costs and Benefits of Wind Energy Through the Lens of National Security
David Cassuto (Pace University)

Between climate change and the myriad of other environmental hazards associated with fossil fuels, the need for renewable energy grows ever more urgent. Wind energy is a rapidly expanding source of clean energy; however, it is not without its complications. This Article examines wind energy through the lens of national security. National security concerns weigh on both the benefit and the cost side when examining the impacts of wind energy. The benefit resides with helping the United States become energy independent. National security concerns also present a cost because wind energy interferes with military radar systems, posing a potential threat to the systems that monitor possible attacks. This Article analyzes the overall impact of wind energy while noting the inherent difficulties when so much uncertainty is involved in the process. 

Part I discusses the benefits of wind energy. Part II examines its costs, specifically its inference with radar, and what that means for national security. It focuses on the fact that wind turbines can cause significant interference with radar, a problem complicated by the disturbing reality that it currently lies beyond DOD´s technological capabilities to determine whether and if interference occurs. Part III outlines the federal process by which wind energy interference with radar is managed and mitigation strategies aimed at reducing the interference. Part IV uses a 2010 wind energy project in Oregon as a case study to illustrate the uncertainties in calculating the costs of wind energy. Part V discusses the current mitigation strategies employed by federal agencies to reduce the effects of wind development on radar systems. Part VI analyzes the hard and soft uncertainties associated with the effects that wind turbines have on military radars. Finally, Part VII concludes that logic and common sense require a precautionary approach to this problem. Until such time as the DOD is able to determine whether and to what extent wind turbines cause interference, no new permits for wind energy developments should issue for installations in proximity to military radar. In addition, current radar facilities should be retrofit immediately to the extent possible and additional resources devoted to resolving the interference problem.

Tax as Part of a Broken Budget: Good Taxes are Good Cause Enough
Stephanie McMahon (University of Cincinnati)

The federal budget is a myth. Despite being a myth, Congress uses the budget to limit its choices by linking its revenue-raising and spending powers and to threaten itself and the public with the federal debt ceiling. Through its self-imposed limits, Congress puts tremendous pressure on how it defines its budget. The budget process generally assumes its tax provisions will raise revenue when the law becomes effective. However, many tax provisions are not self-executing. The Treasury Department and the IRS as a bureau of the department must create guidance to operationalize the Internal Revenue Code. Consequently, limiting the production of tax guidance that implements tax statutes is problematic because their projected revenue is used to balance the budget. Nevertheless, guidance is under attack on the grounds that its issuance fails to comply with the Administrative Procedure Act (APA). The APA generally requires notice and comment for the promulgation of guidance, a costly process in terms of time and agency resources. This article argues that there should be a wider acceptance of the good cause exception for the speedier issuance of tax regulations in order to satisfy Congress’s revenue expectations.

Indigenous Law in Central America: A Key to Improving Life and Justice
Julie Davies (University of the Pacific)

Indigenous law provides accessible and expeditious dispute resolution in regions of Central and South America where it is used. Sanctions, where applicable, focus on achieving collective good and an offender’s reintegration to society. However, the countries in the Northern Triangle – Guatemala, El Salvador, and Honduras - lag behind others in recognizing indigenous law and do not recognize its potential to address serious problems that the formal justice system does not address. Indigenous law is a type of restorative justice; research indicates that where indigenous law is robust there is markedly less crime. Though its philosophy and approach differ from formal justice systems, it has the attributes of a system that participants consider fair. Recognition and support of indigenous justice would be a positive and humane response to some of the problems that prompt large numbers of Central Americans to live in despair or to seek to leave their countries of origin.


Comments/Notes


Least Restrictive Environments: Where Segregated, Self-Contained Special Education Classrooms Fall on the Continuum of Placements and Why Mainstreaming Should Occur with Same-Age Peers
Kelsey Reiner (Student, Michigan State University College of Law)

Under the Individuals with Disabilities Education Act (IDEA), schools must mainstream students with disabilities with their nondisabled peers to the maximum extent possible. IDEA includes a provision that requires school to place students with disabilities in their least restrictive environment (LRE), meaning the environment with the least additional services the student requires to succeed in that setting. The Supreme Court has never ruled about LRE placements, but circuit courts have created different tests to decide students’ LREs. A ruling from the Supreme Court would provide guidance to schools and would better serve students with special needs. Currently, some schools arbitrarily segregate students from their same-age peers by entire buildings without attempting to mainstream those students in even nonacademic activities.

The Supreme Court should consider same-age peer mainstreaming in both academic courses and non-academic activities in forming a new test. Further, the Court should consider the positive effects that students with disabilities can have on nondisabled students in the traditional education setting. While the costs of educating students with disabilities can be higher than educating nondisabled students, costs should not be a factor in mainstreaming. Congress enacted IDEA to remedy the exclusion of students with disabilities from education, so allowing cost as a factor would allow improper segregation and entirely negate the congressional intent behind IDEA.

Awarding Profits in Trademark Infringement Actions: Reconciling the Circuit Split on the Willfulness Requirement with Underlying Trademark Law Rationales
Tim D. Kroninger (Student, Michigan State University College of Law)

Trademarks are found virtually everywhere in modern society, and any given individual encounters thousands of trademarks every single day. Accordingly, trademarks have become huge intangible assets for businesses, with top trademarks worth billions of dollars. Trademarks protect interests of both the consumer and the producer, but they are vulnerable to the danger of infringement via a likelihood of confusion, which destroys the modern functions (and benefits) of trademarks.

The remedies provision of the federal Lanham Act provides that upon a showing of trademark infringement, a court may award to the plaintiff, “subject to the principles of equity,” the defendant’s profits earned via infringement. The meaning of the “subject to the principles of equity” language, which was not defined in the statute, has led to debate and a subsequent split among the circuit courts, particularly as to whether the “principles of equity” require a showing of willful trademark infringement for an award of the defendant’s profits. Based on the importance of trademarks to modern society, it is imperative that courts use all available means, including the threat of disgorging the infringer’s profits, to deter infringers and protect the underlying functions of trademarks. The factor-based approach currently adopted by the Third, Fourth, and Fifth Circuits should therefore be adopted universally because it best balances the “principles of equity” and protecting the beneficial functions of trademarks by not requiring willfulness to award a defendant infringer’s profits.