5450 research outputs found
Sort by
Consider Collateral Consequences: The Inherent Hypocrisy of Veterans Treatment Courts’ Failure to Dismiss Criminal Charges
Get PDFAmerican veterans are often plagued by psychological and physical injuries, among other hardships, which, when unaddressed, can lead to substance abuse, criminal behavior, and suicide. As public awareness of the difficulties that American veterans face was growing, the problem-solving court movement was also gaining momentum. Largely inspired by therapeutic jurisprudence, an interdisciplinary framework that sees the law as a way to reach therapeutic outcomes, problem-solving courts seek to identify the root causes of criminal behavior and address those causes in ways that promote rehabilitation and reduce recidivism. Veterans Treatment Courts (“VTCs”) emerged when veterans advocacy intersected with the problem-solving court movement. This Note explores the origins, growth, and general structure of VTCs. Focusing on the legal implications for veterans who graduate from VTCs, this Note argues that leaving veterans with a criminal conviction directly contradicts the reasons the programs were created and exposes veterans to collateral consequences, only adding additional barriers to reintegration into American civil society
Mutual Fund Advisory Fees: Forty Years of Failure
Get PDFIn the 1960s, the Securities and Exchange Commission (SEC) attempted to correct an oversight in the Investment Company Act of 1940 (ICA) that allowed investment management firms to overcharge investors, namely, the absence of enforceable protections over excessive fees. Congress, in the 1970 amendments to the ICA, was influenced by the investment management industry and the resultant legislation sent ambiguous signals to the judicial system. Lacking clear guidance from Congress, in the seminal fee case Gartenberg v. Merrill Lynch, the Second Circuit fashioned a fiduciary standard favorable to the investment management industry. Under this standard, no plaintiff has ever won an award under the revised ICA. Recently, the U.S. Supreme Court affirmed the Gartenberg standard and, in the process, amplified the original errors of the Gartenberg court. The economics underpinning advisory services have not changed, the overcharging persists, and the judiciary is forced into increasingly extreme rulings to maintain the fiction that advisory fees are reasonable. In the forty years since Gartenberg, the judicial system and independent directors have systematically failed to protect mutual fund investors from excessive advisory fees. In Jones v. Harris Associates L.P., the U.S. Supreme Court acknowledged the lack of “analytical clarity” of Gartenberg and implicitly invited a resolution of the problem by sorting out the differences between advisory fees and fees determined by arm’s length bargaining. The judicial system and Congress have shown no inclination to take up the challenge. Fortunately, the 1970 amendments to the ICA empower independent directors to address the problem. This paper explores these issues and proposes a path forward restoring mutual fund governance to its intended role of protecting mutual fund investors
Protecting Corporations from Discrimination Under the Convention on the Elimination of Racial Discrimination
Get PDFThis article argues that legal persons derive rights under the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and can enforce those rights by individual or inter-state complaint. It uses the case study of media corporations, following from the recent judgment by the International Court of Justice (ICJ) in the litigation between Qatar and the UAE over the application of CERD to the treatment of the Al Jazeera media corporation. However, the implications of this study apply to all private corporations and non-governmental organizations (NGOs). The CERD protects against certain forms of racial, ethnic and national origin discrimination, yet its text is ambiguous whether those rights are vested in legal persons or only natural persons. The admissibility rules of standing and exhaustion of domestic remedies under the CERD appear to argue in favor of an assumption that the CERD would cover legal persons. Not only individuals, but also groups of individuals, may lodge individual complaints, and states may bring inter-state disputes. Some of the rules on admissibility suggest that government-owned or controlled entities are excluded. However, while the rules on admissibility of claims can suggest a broad scope of application, those rules remain distinct from the rules on which entities derive rights under the CERD. The text of the CERD covers persons, groups and institutions. Here it adds the category of institutions, which incongruously is not listed as being competent to bring claims. While there is some room to argue that corporations might qualify as persons, they might also qualify as groups or institutions. The difficulty is that qualifying them as institutions would deprive them of their ability to bring claims on their own behalf. Also, while the rules on admissibility permit inter-state complaints, the rules on the scope of CERD overage exclude the state. Thus, state-owned or controlled entities would likely not be covered by CERD unless they enjoyed sufficient functional independence. Therefore, this article concludes that legal persons, such as corporations and NGOs, derive rights under the CERD and can protect those rights
Lost Paradise: Colombia’s Failed Promise to Protect Human Rights Defenders
Get PDFOn November 24, 2016, Colombia ended a half-century civil war with the Revolutionary Armed Forces of Colombia (FARC) with the signing of the Peace Accord. While there was hope that there would be a new era of peace and reconciliation, Colombia is consistently ranked as the most dangerous country in the world for human rights defenders. As a party to core international human rights treaties that protect the rights to life, physical integrity, and the right to defend human rights, Colombia is obligated to protect these rights and take the necessary preventative measures to protect human rights defenders. Accordingly, Colombia has embodied the right to defend human rights in its Constitution and in its respective legal rules and has created governmental structures with the primary aim of protecting human rights defenders. Despite this, human rights defenders continuously denounce the challenges they face in receiving adequate and preventative protection from their government. This Note seeks to examine the ways in which the legal and judicial mechanisms in place before and after the Peace Accord fall short in effectively protecting human rights defenders’ lives. It analyzes two legal mechanisms intended to protect human rights defenders and their actual impact when implemented. This Note proposes the expansion of protections in definition and in physical protection of human rights defenders and suggests the strengthening of a mechanism of criminal and civil accountability for the institutions that do not respond with due diligence
Balancing Efficiency and the Public Interest: A Comparative Analysis of Force Majeure Defaults in Government Contracting
Get PDFExemplified by the COVID-19 pandemic, contractual force majeure provisions can serve to protect contracting parties but can also place the risk of nonperformance on parties if the specific elements of the provision cannot be met. The current federal regulations governing government procurement in the United States lack the proper blend of uniformity and flexibility necessary to promote efficient contracting and risk assessment for both federal contractors and government agencies. Specifically, the current force majeure-like provision within the Federal Acquisition Regulation—the excusable delay provision—struggles to perfect this balance and puts government contractors in an unstable position of risk and decreased bargaining. This note examines the current US Federal Acquisition Regulation and its force majeure provision, compares the US provision with that of Canada’s federal regulatory framework, and suggests an adoption of the Canadian provision’s language to make for a more efficient and balanced US provision. More specifically, this note argues that a modified version of the US force majeure provision will continue to insulate the federal government from the risks that could adversely affect not only the national economy but also the public welfare and local economies, while also placing contractors in a less hostile and more efficient contracting environment
Down and Dirty: Remedies and Reparations for Intersected Environmental and Reproductive Justice
Get PDFPollution is a rampant issue in the United States, ranging from smog-filled air to infertile soil to contaminated water. Yet despite the pervasive nature of pollution, its harms are not equally distributed amongst society. Black, Indigenous, People of Color (BIPOC) communities disproportionately bear the burden of pollution and consequently suffer more harms because of it. Many of the health consequences from pollution are reproductive in nature: proximity to pollution can compromise fertility, cause difficulty in carrying a pregnancy to term and result in birth defects, disabilities, and reproductive cancers. This note focuses on the reproductive consequences of pollution and relies upon the intersection of the established environmental justice and reproductive justice movements to seek solutions. These movements focus on equity, autonomy, and the uplifting of communities. As such, this note’s solutions, which aim to alleviate the injustices of environmental reproductive harms, are also essential elements for racial justice generally. To mitigate and begin correcting the longstanding harms that stem from the systemic subjugation of BIPOC communities, this note posits that federal acknowledgement, expanded healthcare coverage for fertility treatment, and community-based reparations are essential. These are moneyed solutions in large part because the historic subjugation of minority groups in the United States has resulted in the persistent and worsening racial wealth gap. By providing access to healthcare, essential to a racialized problem, as well as funds that will be invested directly into affected communities at community members’ direction, these solutions can help reinstate autonomy, agency, and power in communities that have been done dirty for generations
Boeing, Boeing, Gone: General Jurisdiction over Corporations, Principal Place of Business, and a Second Look at the Total Activities Test
Get PDFIn 2011’s Goodyear Dunlop Tires Operations, S.A. v. Brown, the United States Supreme Court redefined the contours of corporate personal jurisdiction, radically curtailing the “doing business” jurisdiction that previously predominated. Since then, corporations are only subject to general jurisdiction where they are “fairly regarded as at home,” a domicile test effectively limited to two locations: (1) the state in which the corporation is incorporated and (2) the state in which the corporation has its “principal place of business.” However, the Supreme Court has never explicitly defined the term “principal place of business” for personal jurisdiction purposes. The Court has addressed this topic in the context of diversity jurisdiction, in 2010’s Hertz Corp. v. Friend, finding that a corporation’s “principal place of business” is its “nerve center,” usually its corporate headquarters. This note finds that the federal courts, lacking explicit guidance from the Supreme Court, have largely applied the Nerve Center test for personal jurisdiction purposes as well. This is the wrong approach. The Nerve Center test, when applied for personal jurisdiction purposes, unjustifiably limits plaintiffs’ access to convenient forums, shielding defendants from suit in forums to which they are closely connected, and is in deep tension with the Court’s long-standing precedent from International Shoe Co. v. Washington that general jurisdiction must emanate from a defendant’s “continuous and systematic” contacts with the forum state. Using the Boeing Company and its deep connections to the state of Washington as a guiding example, this note argues that the proper test to apply in the context of personal jurisdiction is a modified version of the Total Activities test, under which a corporation has its “principal place(s) of business” at both its “nerve center” and its “locus of operations,” the location at which the bulk of the corporation’s actual activity occurs. This test resolves serious policy concerns raised by mechanically applying the diversity-derived Nerve Center test in the fundamentally different context of personal jurisdiction, and harmonizes potentially conflicting strands of Supreme Court general jurisdiction jurisprudence
