In this article, we clear the field of a competing interpretation offered by Professor Kurt Lash. In an impressive series of articles and monograph, Lash avoids the Pandora’s Box by contending that the “privileges or immunities of citizens of the United States” are limited to the rights enumerated in the text of the Constitution, and do not include any unenumerated rights. While we agree with Lash that the enumerated rights are indeed among the “privileges or immunities” of U.S. citizens, we demonstrate his failure to establish that these are the only rights of U.S. citizens that state legislatures may not abridge.

In future work, we will present evidence of a more capacious original meaning of “privileges or immunities” of U.S. citizens, as well as a practical means for judges to identify these rights and apply them to cases and controversies. It suffices for now to say that we side with Michigan Senator Jacob Howard’s explanation of “privileges or immunities” over Lash’s.

Importantly, concluding that there should be no special rules for the digital economy does not resolve the broader question of whether the international tax system requires reform. The practical reality appears to be that all the largest economies have come to agree either that a) there is something wrong with the taxation of the “digital economy,” or b) there is something more fundamentally wrong with the structure of the current international tax system given globalization and technological trends.

This paper is intended as a limited exploration of the second (or third, or fourth) best. It analyzes three policy options that have been discussed in general terms in the current global debate. First, I consider whether “user participation” justifies changing profit allocation results in the digital economy alone. I conclude that applying the user participation concept in a manner that is limited to the digital economy is intellectually indefensible; at most it amounts to mercantilist ring-fencing. Moreover, at the technical level user participation faces all the same challenges as more comprehensive and principled proposals for reallocating excess returns among jurisdictions. Second, I consider one such comprehensive international tax reform idea, loosely referred to by the moniker “marketing intangibles.” This idea represents a compromise between the present transfer pricing system and sales or destination-based reforms to the transfer pricing regime. I conclude that splitting taxing rights over “excess” returns between the present transfer pricing system and a destination-based approach is complex, creates new sources of potential conflict, and requires relatively extensive tax harmonization. This conclusion applies equally to user participation and marketing intangibles. If such a mechanism were nevertheless pursued, I suggest that a formulary system for splitting the excess return is the most manageable approach. Third, I consider “minimum effective taxation” ideas. I conclude that, as compared to the other two policy options discussed herein, minimum effective taxation provides a preferable path for multilateral cooperation.

We begin by investigating the “letter” of the Due Process of Law Clauses — that is, the original meaning of their texts. Next, to develop doctrine by which this meaning can be implemented, we identify the clauses’ original function — their “spirit” — of barring arbitrary exercises of power over individuals that rest upon mere will rather than constitutionally proper reasons. We contend that the original letter and spirit of the “due process of law” in both clauses requires federal and state legislators to exercise their discretionary powers in good faith by enacting legislation that is actually calculated to achieve constitutionally proper ends and imposes a duty upon both state and federal judges to make a good-faith determination of whether legislation is calculated to achieve constitutionally proper ends. Finally, we confront hard questions concerning the scope of the states’ reserved powers, acknowledging the flaws in the “police-power” jurisprudence associated with the so-called “Lochner era” and we delineate an approach that will better safeguard all “person(s)” against arbitrary power.

By so doing, we assist state and federal legislators by providing clarity concerning the constitutionally proper ends that federal and state legislators can pursue; aid state and federal judges by equipping them to review legislators’ pursuit of those ends; and help members of the public by enabling them to monitor the performance of their legislative and judicial agents.

Although the professors in attendance might have nodded approvingly, Frank’s speech, later printed in the Congressional Record, was startlingly impolitic in its muddying of a distinction between law and policy that he insisted upon when battling administrators over the terms of marketing agreements for agricultural commodities. How Frank actually drew the line owed less to his legal realist jurisprudence that the persuasiveness of his two associate general counsels, the radicals Lee Pressman and Alger Hiss.

The book: Politics of Piety was published in 2005 and has had a great and successful career in EuroAmerican academia. One sees it cited everywhere- and I mean everywhere- typically in the context of denouncing Western feminism-sometimes one sees the word “secular” inserted between “Western” and “feminism= or in asserting a counter and different kind of feminism to the Western one. The book, which anthropologizes the piety movement among women in the nineties of the twentieth century, namely, the women of the mosque in Egypt, has never been translated to Arabic. It has been more than a decade since its publication and has had a huge and formative effect on a whole generation of academics in EuroAmerican Academia especially among those interested in the study of Islam and Muslims and yet seems to have had a bare life in the Arab world. It appears that a book that talks about an Arab phenomenon has caused an explosion in the West but has landed a DUD in the Arab world. The question is why?

We need is to rethink health emergency response during complex crises and devise new strategies. We offer a blueprint for responding to health emergencies amidst complex humanitarian crises. This blueprint includes peacekeepers who have the mandate and modalities fit for the purpose of quelling a health emergency; “smart” diplomacy to negotiate with belligerents and community members to ensure health and humanitarian worker safety; and deploying all needed health, security, and diplomatic assets. We also call for international development assistance for health, including to support states in developing core public health capacities, creating inclusive health systems, and meeting other need like clean water and nutritious food. Political actors will need to assume their responsibilities if humanitarians and health workers are to carry out theirs.

The “best view” model of lawyering appears to have no formal or widely recognized definition, either in Bauer’s article or elsewhere in the literature. Perhaps the best articulation of the concept is in the memorandum that sets out the “best practices” for the Department of Justice’s Office of Legal Counsel (OLC), which directs OLC lawyers to “provide advice based on [their] best understanding of what the law requires—not simply an advocate’s defense of the contemplated action or position proposed by an agency or the Administration.” In rendering this advice, they must seek “to provide an accurate and honest appraisal of applicable law, even if that appraisal will constrain the Administration’s or an agency’s pursuit of desired practices or policy objectives.”

Bauer takes a dim view of this best view model, which he considers rigid, disconnected from important policy context, and unworkable in a crisis. Bauer proposes an exception to the best view approach for lawyers facing a national security crisis. Lawyers under those circumstances, he argues, should be free to provide alternative legal analysis that supports the preferred policy position, so long as it is credible and made in good faith.

Bauer’s proposal to create an exception to the best view standard for crises, however, risks compromising the quality of national security lawyering overall. National security lawyers in the Executive Branch practice in an environment without many of the formal and informal incentives for high-quality legal advice that are common in other fields. The stakes are unusually high, which increases pressure from policymakers. At the same time, there is less external oversight from the courts and Congress, and the secrecy of much of the subject matter makes peer and public input difficult. Because of these challenges, it is important to build into the process of developing national security legal advice as many protections for high-quality legal analysis as possible. The best view standard is such a protection, and a critical one.

The best view standard is important to high-quality national security lawyering not because it always results in an objectively “right” legal answer—that is not possible. Instead, the best view standard acts as a guidepost—a regulative ideal— for lawyers, reminding them of their distinctive role in the process and grounding them with an external professional standard. It serves as a counterweight to the inevitable pressures that these lawyers face. It also honors and upholds the unique responsibilities of Executive Branch lawyers to assist the President in carrying out his constitutional responsibility to see that the laws are faithfully executed. Bauer’s proposal to recognize a lower standard in crisis situations would subvert this protection.

The Supreme Court’s recent decision in TC Heartland LLC v. Kraft Foods LLC illustrates this dynamic. There, the Court effectively shifted venue choice in many patent infringement cases from plaintiffs to corporate defendants. We use TC Heartland to empirically measure the impact of this shift using an event study, which measures how the stock market re- acted to the decision. We find that likely targets of “patent trolls”—entities that own and assert patented inventions but do not otherwise use them—saw their company valuations increase the most due to TC Heartland. This effect is particularly pronounced for Delaware-incorporated firms. Our results match litigation trends since TC Heartland, as new cases have dramatically shifted to the District of Delaware from the Eastern District of Texas, previously the most popular venue for infringement actions.

Why do investors believe Delaware will do better than Texas in curbing patent-troll litigation? Unlike Texas, Delaware’s economy depends on attracting large businesses that pay high incorporation fees; it is thus less likely to encourage disruptive litigation and jeopardize its privileged position in corporate law. More broadly, we explain why giving defend- ants more control over venue can counterbalance judges’ incentives to increase their influence by encouraging excessive litigation. Drawing on Delaware’s approach to corporate litigation and bankruptcy proceedings, we argue that Delaware will compete for patent litigation through an expert judiciary and well-developed case law that balances both patentee and defendant interests.

On the surface, Montgomery held only that state courts are required to employ Teague’s retroactivity framework when and if they adjudicate habeas petitions relying on new substantive rules of federal law. But, in reaching that conclusion, the Court clarified that Teague’s holding that new substantive rules of federal law are retroactively applicable on collateral review was grounded in the Constitution, rather than common law or the federal habeas statute— a holding that, as we explain, was both novel and important.

We next consider which courts—state or federal—have the obligation to provide the constitutionally required collateral review recognized in Montgomery. Either way, the implications of Montgomery are far- reaching. To conclude that the state courts must provide collateral review would run counter to the conventional wisdom that states are under no obligation to permit collateral attacks on convictions that have become final. On the other hand, the conclusion that federal courts must have jurisdiction to grant such collateral review is in significant tension with the Madisonian Compromise. In our view, the Supreme Court’s Supremacy Clause jurisprudence establishes that the constitutionally required collateral remedy recognized in Montgomery must be available, in the first instance, in state courts, even if the state has not chosen to provide collateral post-conviction relief for comparable state law claims. The state courts also have the constitutional power and duty to afford such relief to federal prisoners, but Congress has the power to withdraw such cases from the state courts by giving the federal courts exclusive jurisdiction over such claims (and should be presumed to have done so). Thus, we conclude that the state courts are constitutionally obligated to afford collateral post-conviction review to state prisoners in the circumstances covered by Montgomery, and the federal courts should be presumed to have the statutory obligation to afford such review to federal prisoners.

Finally, we examine some of the important questions raised by the conclusion that state and federal prisoners have a constitutional right to collateral relief. Although the questions are complex, and not all of the answers are clear, the uncertainties surrounding some of the contours of the remedy recognized in Montgomery should not obscure the fact that this seemingly innocuous holding about the Supreme Court’s appellate jurisdiction actually upends a half-century’s worth of doctrinal and theoretical analyses of collateral post-conviction review, a result that should have a significant impact on both commentators’ and courts’ understanding of the relationship between collateral post-conviction remedies and the Constitution.

Even if the support for the holding had been stronger, however, the Court should have rejected such a reading for a reason considered by neither opinion: under the majority’s interpretation, the provision allocates federal jurisdiction over the relevant cases in a highly dysfunctional manner. AEDPA (as construed in Williams) does not prohibit all federal courts from granting relief to state prisoners convicted pursuant to wrong but reasonable state court decisions. Had it done so, it would have raised serious constitutional issues. Instead, the statute leaves it to the Supreme Court to review state court criminal convictions for such errors. But allocating this role to the Supreme Court today makes little sense. Precedent and principle support judicial resistance to interpretations of jurisdictional statutes that produce such dysfunctional allocations of judicial power. The Court should reverse Williams at its earliest opportunity. Pending such reversal, the Court should grant review of at least some allegedly “wrong but reasonable” state court convictions in order to vindicate the liberty interests of state prisoners who would not be in custody had those precedents been properly applied and to protect its precedents requiring the reversal of convictions infected with non- harmless constitutional errors.