The Right-Based View of the Cathedral: Liability Rules and Corrective Justice

Article by: Omri Rachum-Twaig & Ohad Somech

2016 PEPP. L. REV. 74 (2017)

In their celebrated paper, Calabresi and Melamed offered a framework, often referred to as the ‘‘Cathedral’’ analysis, which explains when and why entitlements should be protected using two main sets of rules—property rules and liability rules.  This framework is now widely used to explain some private law doctrines.  However, cases that are easily explained as applications of liability rules are usually difficult to explain under the private law theory of correlative corrective justice.  This is because the basic idea underlying corrective justice conflicts with the notion of rules that allow the nonconsensual property appropriation subject to compensation.  In this Article, we attempt to reconcile liability rules under both Cathedral analysis and corrective justice.  To do so, we discuss three positive examples of pure liability rules and analyze them under a new model that we believe is consistent with corrective justice.  We then discuss the model’s further implications.


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A Diverse Student Body Without Student Bodies?: Online Classrooms and Affirmative Action

Essay by: Ryan H. Nelson

2016 PEPP. L. REV. 65 (2017)

America’s public universities engage students in myriad classroom environments that range from traditional, entirely-in-person classroom environments to entirely-online, virtual classrooms, with every shade of grey in between.  These varied learning environments pose a fascinating question with respect to the ways such universities use affirmative action in admissions.  In Grutter v. Bollinger, the United States Supreme Court held that “student body diversity is a compelling state interest that can justify the use of race in university admissions.”  Indeed, student body diversity remains one of the few “compelling interests” that the Court has held satisfies the constitutional imperative that the “government may treat people differently because of their race only for the most compelling reasons.”  Yet, can student body diversity exist when there are no student bodies, as in an online classroom?  Is the ability of public university students to know the races of their classmates a necessary element of what makes student body diversity sufficiently compelling to justify race-based admission considerations?  What remains of Grutter if students stop seeing the color of their classmates’ skin, and instead see only their computer screens?


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Negotiating and Mediating Brexit

Essay by: Horst Eidenmüller

2016 PEPP. L. REV. 39 (2017)

The United Kingdom will leave the European Union. Brexit will involve many complex negotiations.  This article analyses the negotiation position of the parties (UK, EU, Member States) based on a set of four key negotiation factors: agreement options, nonagreement alternatives, interests, and perceptions.  A special focus here is on the effect of triggering the formal withdrawal process under the Treaty on European Union’s Article 50 on the non-agreement alternatives of the parties.  The article considers the likely negotiation strategy of the UK against this background.  It further discusses strategic negotiation moves already made by the parties and moves likely to be made in the future.  So far, the parties appear to approach these immensely complex negotiations intuitively, as a zero-sum or even a negative-sum game, engaging only in value-claiming tactics.  No neutral process manager is involved so far.  Against this background, this article proposes an international, tailor-made mediation process as a means to efficiently steer the withdrawal negotiations and help the parties agree on a value-preserving “withdrawal agreement.”


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Dinner for Two: Employer Mandate, Meet ERISA; How Dave & Buster’s Response to the Affordable Care Act’s Employer Mandate May Open the Door for Employees to Seek ERISA Relief

Essay by: Kendall Victoria Dacey

2016 PEPP. L. REV. 15 (2016)

When the Affordable Care Act (ACA) became law in late March, 2010, Dave & Buster’s (D&B) had a choice: it could either comply and offer its full-time employees the minimum health insurance coverage required by the new “employer mandate” or it could ignore the new requirements and incur a penalty. Dissatisfied with either option, D&B made the drastic decision to circumvent the ACA entirely, and reduced its full-time staff below the ACA’s employee threshold so as to avoid triggering any penalty or having to pay increased health care costs.

However, by dodging the employer mandate, D&B may have come in direct conflict with section 510 of the Employee Retirement Income Security Act of 1974 (ERISA). Section 510 prohibits an employer from purposefully interfering with an employee’s attainment of benefits. Because D&B reduced its full-time staff below the ACA’s employee threshold specifically to avoid paying for employee health insurance, it arguably interfered with its employees’ attainment of benefits.  While the Supreme Court has repeatedly refused to hear constitutional challenges to the employer mandate, this article suggests that it could reach that point in the near future.


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Elonis v. United States: Why the Supreme Court Punted on Free Speech

Case Note by: David Barney

2016 PEPP. L. REV. 1 (2016)

In Elonis v. United States, 135 S. Ct. 2001 (2015), the Supreme Court had a chance to interpret the boundaries of a federal statute forbidding threats transmitted in interstate or foreign commerce and to consider the constitutional implications of regulating such threats.  In its statutory analysis, the Court hesitated to declare how the law should be applied, and instead, only provided guidance as to how it should not be.  It likewise refrained from any further analysis on constitutional grounds entirely.  This contest winning student case note explores the opinion in depth and comments on its potential implications.