Category: Commentaries

Skyrocketing mobile data demands caused by increasing adoption of smartphones, tablet computers, and broadband-equipped laptops will soon swamp the capacity of our nation’s wireless networks, a fact that promises to stagnate a $1 trillion slice of the nation’s economy. Among scholars and policymakers studying this looming “spectrum crisis,” consensus is developing that regulators must swiftly reclaim spectrum licensed to other industries and reallocate those rights to wireless providers. In this interdisciplinary piece, we explain in succinct terms why this consensus is wrong. With data demands increasing at an exponential rate, spectrum reallocation plans that promise only linear growth are destined to fail. What regulators should focus on, instead, are policies that encourage the sluggish incumbents presently dominating the wireless industry to roll out new networking technologies (like tiered network architectures, cognitive radio, and multicell MIMO) that together may allow exponential increases in spectral efficiency.

This Article reviews the conduct and effects tests and the Supreme Court‘s decision in Morrison. It then addresses the new transactional rule‘s impact on the application of the Exchange Act‘s antifraud provisions in several situations where courts before Morrison routinely allowed § 10(b) claims to proceed: (1) foreign-cubed actions (i.e., claims involving a foreign citizen‘s purchase of a foreign issuer‘s ordinary shares on a foreign exchange) where the fraud impacts U.S. investors or is executed in the U.S.; (2) cases involving a U.S. citizen‘s purchase of a foreign issuer‘s ordinary shares outside the U.S.; and (3) actions concerning the purchase of a foreign issuer‘s American Depository Receipts (“ADRs”). While courts are in agreement that the test articulated in Morrison prevents § 10(b) from reaching defendants in the first and second types of actions, they are in conflict as to whether ADR purchasers should be able to bring a claim. This Article argues that a recent district court decision wrongly decided the application of Morrison in the ADR context and that the new rule should not prevent most ADR purchasers from bringing a cause of action under § 10(b).

Despite the alleged triumph of legal realism and the empirical turn of closely related fields such as judicial behavior, a startling number of constitutional theorists continue to approach their work as a purely conceptual enterprise. This is particularly true of originalists, but it is true of many others as well. Indeed, much of normative constitutional theory as it is presently practiced resembles a recreational debating society more than a serious effort to improve the functioning of a massively complex modern society. If constitutional theory is to live up to its aspirations, a new reality-based approach is urgently needed. This brief Article makes the case for such an approach and offers practical suggestions for getting it off the ground.