UCLA Law Review Volume 59, Issue 2

Airspace in a Green Economy

The recent surge of interest in renewable energy and sustainable land use has made the airspace above land more valuable than ever before. Unfortunately, a growing number of policies aimed at promoting sustainability disregard landowners’ airspace rights in ways that can cause airspace to be underutilized. This Article analyzes several land use conflicts emerging in the context of renewable energy development by framing them as disputes over airspace. This Article suggests that incorporating options or liability rules into laws regulating airspace is a useful way to promote wind and solar energy while still respecting landowners’ existing airspace rights. If properly tailored, such policies can facilitate renewable energy development without compromising landowners’ incentives and capacities to make optimal use of the space above their lands. This Article also introduces a new abstract model to argue that policymakers should weigh the likely impacts on both rival and nonrival airspace uses when deciding whether to modify airspace restrictions to encourage sustainability.

A Minimalist Approach to State “Bankruptcy”

Increasingly finding themselves in fiscal straightjackets, states have been turning to austerity measures, tax increases, privatization of services, and renegotiation of collective bargaining agreements. Absent a federal government bailout, however, states will also need debt relief if their debt burden becomes so crushing that reasonable efforts at fiscal reform will fail to avoid default. Some advocate providing this relief by, effectively, extending municipal bankruptcy law to states. That approach brings in excess baggage, however, engendering political opposition and constitutional concerns. There is a simpler solution: Enable states to work out their debt problems with their creditors. Although the main obstacle to consensual debt restructuring is likely to be the creditor-holdout problem, this Article proposes a minimalist legal framework incorporating certain limited bankruptcy protections that would not only help states solve that problem, but would also help address the political and constitutional concerns. The proposed minimalist framework also would enable a state to obtain needed liquidity during the debt-restructuring process. Although the federal government could provide this liquidity, the proposed framework would enable the liquidity source to be privatized.

The Irony of International Business Law: U.S. Progressivism and China’s New Laissez-Faire

As the financial crisis draws U.S. business overseas and developing countries rise in influence, the regulation of international business has never figured so prominently in federal law. But the dominant paradigm through which academics and policymakers continue to view that law—the so-called Washington Consensus—proves deeply misleading. A more accurate account of the components, origins, and aims of U.S. international business law reveals two striking ironies.

First, in discrete but critical ways, the United States no longer represents the comparatively laissez-faire approach to federal business regulation. Rather, owing to its origins in the Progressive Era, U.S. federal law directs corporations toward noneconomic social goals, particularly combating corruption (for example, the Foreign Corrupt Practices Act) and promoting human rights (for example, the Alien Tort Statute or economic sanctions). By contrast, the alternative legal regime to which the United States is frequently compared—China—largely allows companies to pursue profits internationally without regard to their impact on corruption and human rights. Though it remains true that the U.S. regime and its principal alternative are distinguished by the extent to which the state restricts business conduct to achieve social goals, the roles are now reversed.

Second, the rise of an alternative model now substantially thwarts the goals of U.S. progressive regulation. Empirical research in political science and economics demonstrates that because the U.S. regime increases the costs of doing business in emerging markets, U.S. companies tend to invest less. The resulting void in capital is filled by companies from China and other countries that similarly lack prohibitions on bribery and human rights violations. Ironically, enforcement of U.S. progressivism creates the very conditions in which corruption and human rights violations occur.

The News Deal: How Price-Fixing and Collusion Can Save the Newspaper Industry—and Why Congress Should Promote It

Newspaper executives have been struggling for the past decade to slow the sharp and unprecedented decline of their industry. While no effort has worked, one promising business model would be to charge for access to online content. But only the rarest industry leaders have felt comfortable making the move to a paid-content model without industry-wide agreement, and such an agreement would be a per se violation of U.S. antitrust law. Unlike in other areas of the law, antitrust law does not permit courts to make policy judgments and approve of “good” agreements to restrain trade or fix prices, even when such a move would further antitrust policy interests. Exemptions can only come from Congress. This Comment argues that, because of the newspaper industry’s vital role in generating new information that supports American democratic society, Congress should pass a narrow and temporary exemption from the collusion and price-fixing prohibition in Section 1 of the Sherman Act. Such an exemption would allow newspaper executives to work together on a sustainable online business model for the press, thereby preserving the American corps of professional newsgatherers. That, in turn, would stabilize contributions to the marketplace of information and ideas and would slow the consolidation and concentration of newspaper ownership. Both of these outcomes would advance a primary goal of antitrust law—increase in consumer options.

Qualified Immunity After Pearson v. Callahan

In Pearson v. Callahan, the U.S. Supreme Court altered the contours of the qualified immunity defense with the intention of changing when and how federal courts make constitutional law. Qualified immunity is the primary defense to constitutional torts against government officials. Before Pearson, courts were required to determine if an official had violated a constitutional right even when that official was already protected by qualified immunity. After Pearson, courts now have the discretion to avoid such constitutional determinations when an official has qualified immunity. To determine Pearson’s impact, this Comment presents an empirical study of qualified immunity cases. The findings are surprising. While circuit courts have generally begun avoiding constitutional determinations as expected, district courts have not done so. Because Pearson was motivated by significant criticism of mandatory engagement in constitutional analysis, the district courts’ reaction is troubling. However, this reaction does indicate that courts tend not to avoid constitutional determinations in order to promote judicial efficiency. If this were the case, such a motivation would affect district courts more than circuit courts. Instead, it seems that a court’s decision to avoid a constitutional determination is a product of its interest in controlling constitutional precedent. In sum, Pearson has given courts substantial control over what precedent enters the body of constitutional law, and at least circuit courts appear to be consciously using it—a finding with implications for how constitutional law will develop in the future.