POSSIBLE LAW REVIEW TOPICS

1. Internet Free Speech: Systematic review of corporate efforts to squelch free speech/criticism on the Internet through the improper use of trademark and libel law. Stress the ability of the Internet as democratizing institution, which brings down the costs of corporate criticism.

2. Attorney’s Fees. There is a need for an EMPIRICAL law review piece regarding the pernicious effect of the Supreme Court’s decision in the Buckhannon case on a wide range of civil rights, consumer, civil liberties litigation, with a particular focus of FOIA, where Buckhannon has had a particularly harsh bite.

3. Federal Civil Rule 23(f) – – which allows permissive appeals of class certification decisions – – went into effect in 1998. Though it is stated neutrally – – permissive appeals can be taken after grants or denials or class certification – – predictably, it is a tool for defendants to undermine class litigation. An informal look at this a few years ago in our office showed that the permissive appeals allowed to date were almost exclusively for defendants seeking to overturn
class certification, not for plaintiffs seeking to reverse a denial of class certification. An empirical study of the one-sidedness of the rule, accompanied by an agenda for reform would be useful.

4. Administrative Law – Deference. Judicial deference to administrative agency decision making is far too great, and extends to most formal agency pronouncements on the meaning of statutes, no matter how self-serving, and often no matter how irrational. This makes true citizen oversight of agency decision-making very difficult. At the very
least, deference should be accorded only where, in coming to its view, the agency is drawing on its expertise germane to the matter in question. If this were the law, we would be on a much more even playing field when challenging irrational, unlawful, and outrageous agency conduct.

5. No side deals on class action fees. I agree that this is a good topic for an article. Compare the Agent Orange decision from the Second Circuit with the Bowling v. Pfizer decision from the Sixth Circuit.

6. Preemption. Empirical study showing anti-plaintiff bias in the lower federal courts in tort preemption case, comparing those courts with the state appellate courts and the Supreme Court, which are much more friendly to defendants. The article should try to explain why the courts are different, and explain why the approach of the lower federal courts is generally wrong.

7. The Need for a Private Right of Action under the Federal Trade Commission Act in light of the Class Action (Un)Fairness Act of 2005. Among other things, having such a right of action would override problems with certifying national consumer class actions that depend on differing state consumer protection statutes.

8. Alternative mechanisms of funding healthcare R&D. The WTO’s TRIPS agreement represents a global R&D funding scheme, in which countries pay for R&D through the patent system — by a system of monopolies that charge sick people (in the case of healthcare R&D). Huge waste is associated with this system — including through the provision of incentives to advertise and market heavily to promote products of questionable value. Are there alternative models? Can a global system replace the TRIPS mandate for monopoly protections? How would it work? To see a developing NGO proposal, with growing support, http://www.cptech.org/workingdrafts/rndtreaty.html

9. Competition policy in developing countries. Although poor countries are dominated by cartels and collusive arrangements at every level of the economy, from village lending to multinational corporate control over grain markets, developing country competition authorities are almost without exception very weak. What institutional forms are
appropriate? What can be borrowed from rich country experience? What kinds of special rules should be crafted to advance developing country specific needs?

10. Critical perspectives on privatization. The World Bank and other institutions continue to aggressively push privatization in all areas, including traditionally public services such as water provision. A review of the record in this area is worthwhile. Also, very underdeveloped is the issue of the terms on which privatizations should occur, if they are going to proceed. What performance standards, including requirements to provide services at or below cost, to impoverished communities, should be required as a condition of privatization (and which may be mandated by contract or regulation, depending on context)? What kinds of transparency should govern the new operation, as well as the privatization itself?

11. Legal mechanisms for management of community resources. Indigenous groups are increasingly seeking formal legal ownership of biodiversity and traditional knowledge. Legal forms for such ownership are just now being innovated, and still merit critical reflection. Also very underdeveloped are community and cooperative control or ownership arrangements over water, land, natural resources and physical property.

12. Credit provision for poor communities. Beyond the mechanisms of microcredit, what sort of efforts may be undertaken to deconcentrate access to credit in developing countries. Might principles be drawn from the US Community Reinvestment Act?

13. The Precautionary Principle: The Precautionary Principle is an idea emanating from the environmental movement, with broader than environmental application, that says: take preventive action in the face of uncertainty to prevent harm. How can this principle be operationalized in international agreements? Is it relevant for developing countries? How might it guide their approach to technology management? On Precautionary Principle issues, see http://www.multinationalmonitor.org/mm2004/09012004/index.html

14. Corporate code of conduct. For two decades, the US undermined and finally defeated a UN effort to create a code of conduct for transnationals. Should the idea be revived? What should be included?

15. The extent and limits of contractor-subcontractor liability. Citizen campaigns have made large multinationals politically liable for the operations of their subcontractors, but legal liability is more tenuous. Should it be increased? Through what mechanisms? Wal-Mart has 5,000-10,000 contractors in China. What should be Wal-Mart’s
responsibility as regards those contractors? What are the consequences of a legal regime that says it has none?

16. Promoting community-based agriculture. While there may be movements in the US and rich countries to support local agriculture through farmers markets and the like, community-based agriculture is being completely decimated throughout the Third World, thanks to the forces of corporate globalization and the mandates of institutions such as the
IMF, World Bank and WTO. (The situation is actually pretty bad in the US, too.) What alternative kinds of legal arrangements would protect community agriculture and biodiversity? What efforts might succeed within the existing regimes?

17. Technology transfer. A leading demand from developing countries for decades has been the facilitation of technology transfer. Indeed one of the overt rationales for the TRIPS Agreement is technology transfer (it has failed miserably). What have been the successful measures facilitating technology transfer in the successful Asian economies? To what extent are they compatible with existing international legal regimes (eg, TRIPS, and investment agreement proscriptions on performance requirements)? What alternative kinds of proposals and legal regimes should developing countries consider innovating (example: research mandates that multinationals reinvest a portion of earnings in
R&D in the host country, or, say, pay it into a national R&D fund invested in national institutions)?

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