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International Law as a Tool for Reviving, Preserving, and Protecting the Tajik Language in Uzbekistan
No full textThe Restatement of Law on Juveniles’ Adjudicative Competence and Rights in Interrogation: Evidence of Progress
Full text linkPart 3 of the Restatement of Children and the Law, 1 “Children in the Justice System,” reflects recent dramatic reform in juvenile law and practice.2 The reform recognizes that kids are different, requiring special attention to protecting due process when the justice system must make decisions in delinquency cases.3 The Restatement’s analyses use neuroscientific and psychosocial developmental research that has improved our under- standing of children’s and adolescents’ immature decision-making capacities and psychosocial vulnerability compared to adults.4 This developmental perspective has led to extensive reform of laws and practices that seek to better protect juveniles’ due process rights when in custody of the juvenile justice system. Analyzing established law and progressive trends, the Restatement offers guidance for the legal system and process, highlighting the need for continued changes in courts and legislatures not yet in step with prevailing trends in juvenile law.
This commentary examines two topics in Part 3 of the Restatement: Chapter 15, § 15.30 on “Adjudicative Competence in Delinquency Proceedings,” and Chapter 14, § 14-2 on “Interrogations and the Admissibility of Statements.” For both areas, the commentary examines the present state of law, policy, and practice trends identified by the Restatement, with special attention to needs for further reform. What evidence do we have that states are adopting, or are slow to adopt, important trends in juvenile law identified in the Restatement’s approach to juvenile adjudicative competence and pretrial custodial interrogations? Where is there still work to be done to promote changes in law highlighted by the Restatement, and what factors challenge that work?
Part I of the commentary examines recent reviews and social science reports of state laws, legal systems, and practice related to adjudicative competence in juvenile court. Part II offers cautionary comments on the potential of various procedural protections for juveniles in pretrial interrogations and their judicial re- view. Finally, Part III reflects generally on why it has been, and will continue to be, so challenging to create developmentally in- formed due process protections in these two areas of juvenile law
Detecting Edgeworth Cycles
No full textWe develop and test algorithms to detect Edgeworth cycles, which are asymmetric price movements that have caused antitrust concerns in many countries. We formalize four existing methods and propose six new methods based on spectral analysis and machine learning. We evaluate their accuracy in station-level gasoline-price data from Western Australia, New South Wales, and Germany. Most methods achieve high accuracy with data from Western Australia and New South Wales, but only a few can detect the nuanced cycles in Germany. Results suggest that whether researchers find a positive or negative statistical relationship between cycles and markups, and hence their implications for competition policy, crucially depends on the choice of methods. We conclude with a set of practical recommendation
Kids, No Phones at the Dinner Table: Analyzing the People’s Republic of China’s Proposed “Minor Mode” Regulation and an International Right to the Internet
Full text linkAround the world, governments are contemplating taking steps to reverse or mitigate the negative health and developmental effects that come from the increasing amount of time children are spending online and using screens. In 2023, the People’s Republic of China (PRC) released a draft regulation restricting minors’ screen time and internet use, which imposes a significant burden not only on children, but also on technology and internet companies that wish to continue operating in the country. However, the PRC’s proposed minor mode regulation is neither an extreme departure from the types of restrictions neighboring countries in East Asia have imposed on children’s screen time and internet use, nor its own previous regulations in this area. As such, the proposed regulation is unlikely to have violated a norm of customary international law against restricting children’s internet use. Similarly, although international instruments like the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights guarantee a universal right of expression, which arguably includes an implied right to the internet, the proposed Chinese regulation is not likely to be deemed violative of either of these instruments because of ambiguities within them as to how states are meant to weigh children’s rights against their protection. This conclusion is bolstered by the competing provisions of the Convention on the Rights of the Child about protecting children’s fundamental rights while also ensuring their health and wellbeing. As such, the PRC’s Draft Minor Mode Guidelines are likely to pass without facing significant legal challenges domestically or internationally
Investor State Dispute Settlement and Net Zero Initiatives: Case Study of Germany’s Coal Exit Auctions
Full text linkThis Comment provides a comprehensive legal analysis of the potential investor-state disputes arising from Germany’s groundbreaking Coal Exit Act, which utilizes reverse auctions to phase out coal-fired power plants. The study investigates potential breaches of the Energy Charter Treaty (ECT), focusing on Article 10(1), the fair and equitable treatment clause, and Article 13(1), the expropriation clause. The reverse auction mechanism, when examined under ECT provisions, could be perceived as both a breach of fair and equitable treatment and an unlawful, indirect expropriation, substantially depriving investors of the value of their investments. The analysis also delves into Germany’s possible defenses to a prospective claim, including jurisdictional objections, waiver clauses in buyout contracts, exceptions for necessary regulations in the ECT, and withdrawal from the ECT altogether. Findings suggest that investor-state claims can feasibly proceed in response to Germany’s coal phase-out policy. Accordingly, policymakers should factor in the costs of Investor-State Dispute Settlement (ISDS) when estimating the cost-saving potential of reverse auctions as a means to phase out high emissions assets like coal-fired powerplants. The Comment concludes by proposing a more efficient buyout transaction structure that leverages carbon markets to enable comparable emissions reductions at a lower marginal cost of abatement and reduce the state’s exposure to ISDS claims
Effective Removal of Article III Judges: Case Suspensions and the Constitutional Limits of Judicial Self-Policing
Full text linkUnder the Judicial Conduct and Disability Act of 1980 (JCDA), it falls to federal judges in each circuit to investigate and redress complaints about their col- leagues’ behavior. A controversial provision of the Act authorizes the temporary suspension of misbehaving judges from new case assignments. Judges suspended under the Act—most recently, Judge Pauline Newman in the Federal Circuit—have argued that this amounts to effectively removing them from office without impeachment, violating constitutional protections of judicial tenure and independence. No court has invalidated a suspension on this basis so far. Yet courts have reserved the question taken up here, namely whether a long-term suspension could, by its practical effect, cross the line into removal
Adolescents in the Justice System: A Progress Report on the Restatement of Children and the Law
Full text linkProfessor Elizabeth Scott, the chief reporter of the American Law Institute’s (ALI) Restatement of Children and the Law,1 has often observed that the nation’s widespread commitment to juvenile justice reform in the twenty-first century should be grounded in two premises: (1) the laws and practices of the juvenile justice system must be grounded in and guided by evolving knowledge about adolescent development; and (2) youth-serving institutions, including the justice system, must collaborate to erase substantial racial disparities in intervention, discipline, and punishment.2 This Symposium will explore the current draft of the Restatement of Children and the Law with a focus on these two policy imperatives.
Two uniquely qualified and accomplished experts have agreed to comment on the current draft of the Restatement from the perspectives of adolescent development and racial equity. First, Thomas Grisso, Emeritus Professor of Psychiatry at the University of Massachusetts Medical School, addresses the proposed Restatement’s approach to the assessment of adolescent decisional capacity, a pivotal feature of the law’s evolving effort to ground the law in advancing knowledge about adolescent development.3 Second, Kristin Henning, Blume Professor of Law at the Georgetown Law Center, reflects on the profound challenge our legal system faces in the effort to achieve unbiased, fair, and effective responses to youthful offending.4 My assignment is to respond to their respective critiques and proposals
Parents in Fact
Full text linkThe Restatement of Children and the Law, protects a child’s relationship with a T“de facto parent”—a person who has “established a bonded and dependent relationship with the child that is parental in nature.” De facto parent doctrines are part of a broader category of functional parent doctrines that extend parental rights to an individual who has developed a parent-child relationship and acted as a parent to the child. Application of the de facto parent doctrine depends on a conclusion that the person formed a parental relationship, and yet debate remains over whether the person is a parent or merely a third-party nonparent.
This Essay examines the Restatement’s full-throated embrace of a de facto parent doctrine—an immensely important development—in the context of family law’s evolving treatment of functional parents. In the past, family law generally cast functional parents as nonparents. For example, a 1995 state court decision, on which the Restatement relies, treated a de facto parent as a third party entitled merely to visitation with the child she had raised. More recently, family law has grown to see functional parents as parents. Common law doctrines have regarded de facto parents as entitled to the rights and responsibilities of parenthood, and a growing number of states have adopted statutory provisions that treat functional parents as legal parents. The Restatement’s approach to de facto parents reflects these developments. Even as the Restatement begins by locating de facto parents in a framework designed around conflicts between legal parents and third parties, it distinguishes de facto parents in ways that render them, both conceptually and legally, like parents. In- deed, the Restatement pushes well beyond the American Law Institute’s earlier endorsement of a de facto parent doctrine—the 2002 Principles of the Law of Family Dissolution, which recognized de facto parents but consigned them to an inferior legal status.
After situating the Restatement’s approach to de facto parents within broader family law developments, this Essay explores how the evolving status of functional parents—from nonparent to parent—matters to constitutional understandings of the parent-child relationship. To account for the fundamental right of parents to direct their children’s upbringing, including by excluding third parties, the Restatement requires a de facto parent to show that “a parent consented to and fostered the formation of the parent-child relationship between the individual and the child.” This consent-based approach to de facto parenthood proceeds from an assumption that a functional parent is a third party who, based not only on their conduct but also on the conduct of an existing legal parent, can transcend that third-party status. Yet, seeing de facto parents as parents prompts skepticism of this constitutionally grounded consent requirement. Such skepticism is reflected in law, as courts have resisted a restrictive application of the requirement, and newly enacted statutory doctrines have explicitly softened the requirement. Further, the fact that other functional parent doctrines, including those that yield legal parentage, do not expressly require parental consent suggests that consent is not a constitutional requirement. More broadly, the focus on consent obscures the constitutional interests of the functional parent, who, like other parents, may have a constitutional claim to parental recognition
“Don’t Go Chasing Waterfalls”: Fiduciary Duties in Venture-Capital-Backed Start-Ups
No full textWe develop a model of venture capital contracting and use it to evaluate an emergent set of judicial precedents in corporate law, which we label the Trados doctrine. In our model, founders hold common stock, while venture capital investors hold convertible preferred stock. We show that preferred shareholders have inefficient incentives to liquidate low-valued firms and to continue high-valued firms, while common shareholders inefficiently favor the opposite. The extent of incentive misalignment depends on the firm’s intrinsic and outside valuations, and it is most severe around preferred shareholders’ liquidation preference and conversion point. Although legal liability rules can rectify these misalignments, they can only do so categorically when management prioritizes preferred shareholders’ interests. The Trados doctrine, however, generally obligates management to prioritize common shareholders’ interests. Our model offers a precise mechanism for how capital structure, corporate governance, and legal doctrine jointly determine firms’ value