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Brief for Amici Curiae Christopher T. Robertson, Kelly Bergstrand, and D. Alexander Winkelman in Support of Appellants\u27 Petition for Initial Hearing En Banc
Get PDFPlaintiffs-Appellants have asked the Court to reconsider its decision in SpeechNow.org v. Federal Election Commission, 599 F.3d 686 (D.C. Cir. 2010), which gave rise to so-called Super PACs and similar independent expenditure organizations.3 The Court in SpeechNow recognized that the “appearance of corruption” could justify campaign finance regulation under Supreme Court precedent. Id. at 692. But the Court went on to state that, “[i]n light of the [Supreme] Court’s holding as a matter of law that independent expenditures do not corrupt or create the appearance of quid pro quo corruption, contributions to groups that make only independent expenditures”—like SuperPACs—“also cannot corrupt or create the appearance of corruption.” Id. at 694. Amici’s empirical research strongly suggests otherwise. In two studies with complementary methodologies, Amici found that contributions to organizations that make only independent expenditures may in fact create the appearance of quid pro quo corruption. In light of this empirical research, the Court should grant initial hearing en banc and reconsider its decision in Speechnow, which rests on an incorrect premise
Washington’s \u27Cutting-Edge\u27 Technology Solution to Combating Sales Tax Fraud: Real-Time Data (Now), Real-Time Remittance in the Future
Get PDFGlobally, consumption tax compliance (value added tax and retail sales tax) has gone digital – digital invoices are becoming mandatory, centralized monitoring of transactions and tax payments are increasingly common, and artificial intelligence is assessing fraud risks in real-time. When tax is collected, it is increasingly being remitted in near-real-time. This is the trajectory for the modern retail sales tax (RST) imposed by most states in the US. While this may appear to be revolutionary to the average American, it is a well-worn path among global nations using the value added tax (VAT). The RST will eventually be following suit. Washington has taken the first step on this journey with the help and cooperation of a small business owner who admitted to using an Electronic Sales Suppression (ESS) device when operating a highly regarded Asian restaurant in Seattle.To address sophisticated tax fraud in the digital age, the Washington State Legislature commissioned a world-wide study, conducted by Gartner, Inc. was delivered April 22, 2019, to the Washington Department of Revenue (DOR) which in turn “... completed [its] review of relevant research into technology trends; Point of Sales (POS) solutions, the ecosystem of integrated retail software solutions, cloud technologies, [and] other underpinning technologies ...” The Gartner research effort was practical, market-driven, and encapsulated in a set of “... scenarios represent[ing] the full set of reasonable solutions for DOR’s consideration, ...”Gartner’s scenarios in the commissioned study were distilled to four. In each instance the scenarios were numbered, characterized with a single word, differentiated by their primary focus, and then made more concrete by identifying (what Gartner considered to be) a representative country for each scenario.• Alternative #1: Foundational – Internal Focus (“Like UK”) (more properly Japan)• Alternative #2: Targeted – External Focus (“Like Netherlands”)• Alternative #3: Broad – External Focus (“Like Belgium”)• Alternative #4: Cutting Edge – External Focus (“Like Fiji”)Unfortunately, the report has major deficiencies. Notably, it makes no reference to an ongoing pilot project conducted by the DOR as a result of a plea agreement in the State of Washington v. Wong, that initially followed an Gartner’s Alternative #2 approach, and then shifted to Gartner’s Alternative #4 to improve data monitoring scope and accuracy. This paper largely corrects the focus and the conclusions of the Gartner report, which (at some cost) completely missed an opportunity to contribute substantively to this field of endeavor.The State of Washington’s pilot program on preventive technology for monitor electronic sale suppression is extraordinary, both in its design and in its implementation. As pilot programs go, this is a uniquely marketplace-driven effort controlled by self-interest and achievement not by fiat. This is not a top-down pilot. It is a DOR hands-off, but outcome-controlled effort that forces the parties (POS providers, third-party security firms, and businesses/taxpayers) to explore the data security options that promise to counter suppression, and select the best.For example, there is no POS manufacturer or standardized file format, no third-party provider of security systems recommended or even suggested by the DOR (not in person, in regulation, nor on a DOR web site). The desired outcome is very clear, but the means each taxpayer will employ to achieve that outcome is not dictated. It is entirely up to the taxpayer to find an acceptable solution, pay for it, present it to the DOR and then convince the authority that this solution solves sales suppression, as the DOR sees it.There is no rule, regulation or other guidance provided by the DOR on what constitutes “a method acceptable to the department.” It is up to the taxpayer to find an acceptable method.In a very real sense, the State of Washington’s electronic monitoring pilot project has been designed, developed, and paid for by Ms. Yu-Ling Wong. Without her sincere efforts to try one solution after another, the State of Washington would not have an electronic monitoring pilot. Washington would not be on the “cutting edge” without her
Deference: The Legal Concept and the Legal Practice
No full textDeference is perhaps the most important concept and practice in law. It lies at the core of every system of precedent, appellate review, federalism, and separation of powers, all of which center on how one actor should deal with previous decisions. Oddly enough, deference is also one of the most underanalyzed and undertheorized legal concepts and practices, perhaps because its applications are so varied. This book’s goal is to provide a definition of and vocabulary for deference that can be used to describe, explain, and/or criticize deference in all of its manifestations in the law, including some manifestations that are not always identified by legal actors as instances of deference, such as practices of precedent in which institutional actors consider their own prior decisions. This book undertakes a descriptive and conceptual, not normative or critical, analysis of deference. It leaves to others the question whether deference, in any particular context, is “legitimate” or “bad,” and it does not seek to prescribe whether and how any legal system should apply deference in any specific circumstance or to critique any particular deference doctrines. Rather, it hopes to bring the very concept of deference to the forefront of legal discussion; to identify, catalogue, and analyze at least the chief among its many legal applications; to set forth the many and varied rationales that can be and have been offered in support of (some species of) deference in different legal contexts; and thereby to provide a vocabulary and conceptual framework that can be employed in future projects, whether those projects are descriptive or prescriptive. While this book draws its material almost entirely from American law and practice, we hope in future work, perhaps with the help of other scholars, to expand the study to include the law and practice in other countries and particularly in non-common-law legal systems.https://scholarship.law.bu.edu/books/1218/thumbnail.jp
Affirmative Action
Get PDFThere are consistent messages to people of color about their proper place in /= / \u3esociety, which has always been a really important tool for maintaining and /= / \u3eadvancing white supremacy. Referring back to what Professor Haney-Lopez /= / \u3easserted earlier today, in today’s post-civil rights society, few people would /= / \u3eargue in favor of segregation in racial terms explicitly so. And few people would /= / \u3eassert that Blacks, for example, do not belong in certain places. However, /= / \u3eopponents of affirmative action have begun to articulate a form of these /= / \u3earguments as an add-on to the mismatch theory. In the minds of these scholars, /= / \u3eaffirmative action should not be employed—or, rather, it should be utilized much /= / \u3eless—because African American, Latinx, and American Indian students simply /= / \u3edo not belong at elite institutions of higher education, pointing to what they refer /= / \u3eto as a mismatch between elite schools and the standardized test scores of many /= / \u3eunderrepresented minority students. Scholars like Peter Arcidiacono and Richard /= / \u3eSander assert that affirmative action tends to harm underrepresented minority /= / \u3estudents more than it helps them because it places them at schools where they’re /= / \u3esimply “outmatched,” or where they cannot compete with their white peers. And for this reason, they argue what should matter most is whether underrepresented /= / \u3eminority students actually go to college or graduate school, not where they go to /= / \u3ecollege or graduate school. They highlight that affirmative action determines /= / \u3ewhere, not whether, individuals attend college
Why Sexual Privacy Matters for Trust
Get PDFEvery generation’s intimates have their preferred modes of self-disclosure. Not long ago, intimate partners exchanged love letters and mixed tapes. They spent hours on the phone. Today, they text their innermost thoughts, beliefs, and wishes, sometimes with nude photos attached. They engage in sexually-explicit activity via FaceTime and SnapChat. Now, as then, the success and integrity of intimate relationships depends upon sexual privacy. Intimate relationships develop as partners grow to trust one another to treat their nakedness, deepest secrets, and sexual desires as they hope rather than as they fear. Handling partners’ personal information with discretion lays the foundation for trust that is crucial to intimacy.My previous work conceptualized sexual privacy as a distinct privacy interest that deserves comprehensive legal protection. In this Article, I drill down on a crucial reason why sexual privacy matters—as a precondition to intimate relationships. Sexual privacy invasions wreak havoc on the project of intimacy. When individuals secretly videotape others undressing or having sex or when they post former intimates’ nude photos online, victims find it difficult to trust others. Victims fear that revealing their naked bodies and intimate information will end in unwanted exhibition and exploitation. Law and technology have potential to reinforce trust and sexual privacy in intimate relationships, but they require careful assessment to ensure that they do not undermine them
Death of Copyright
Get PDFThe four primary bodies of intellectual property law—patent law, copyright law, trademark law, and the law of trade secrets—address the question of duration in different ways. Trade secrets have no fixed duration; the law protects against misappropriation as long as the relevant information remains secret. Trademark protection lasts as long as the mark retains its capacity to distinguish the goods or services it is attached to. In patent law—my primary area of scholarship—duration is fixed, finite, and generally straightforward to determine: you get twenty years from the date you file your patent application. Copyright duration, by contrast, varies depending on the rather glum circumstance of when the author dies: under U.S. law, most copyrights expire seventy years after the author expires
Research Report on Federal Agency ALJ Hiring after Lucia and Executive Order 13843
Get PDFThis draft report examines federal agency hiring practices for administrative law judges ( ALJs ), who preside over formal agency hearings, in light of the Supreme Court\u27s determination that ALJs are constitutional officers and President Trump\u27s executive order to exempt ALJs from certain statutory competitive-service hiring requirements. The report also provides recommendations for best agency hiring practices. Professors Jack Beermann and Jennifer Mascott co-authored this initial draft report. After Professor Mascott stepped down from the Administrative Conference of the United States to work in the Department of Justice\u27s Office of Legal Counsel, Professor Beermann edited the report and produced its final May 2019 version, which is available here: https://www.acus.gov/sites/default/files/documents/Submitted%20final%20draft%20JB.pd
Trump’s Travel Ban Faces Fresh Legal Jeopardy
No full textIn the months since June 2018, when the Supreme Court upheld the third version of President Donald Trump’s controversial travel ban, the matter has largely slipped from the headlines as the president’s political adversaries have turned their attention to other issues. But the ban—which, even in its revised form almost completely blocks travelers from seven potentially dangerous countries, five of them with Muslim-majority populations—remains a rare and blunt-force instrument in American immigration policy.
It’s the law of the land. But even with the Supreme Court’s imprimatur, it may not be as bulletproof as the White House assumes
Follow the Money? A Proposed Approach for Disclosure of Litigation Finance Agreements
Get PDFLitigation finance is the new and fast-growing practice by which a non-party funds a plaintiff’s litigation either for-profit or for some other motivation. Some estimates placed the size of the litigation finance market at 50–100 billion dollars. Both proponents and opponents of this newly -emergent phenomenon are in agreement that the it is the most important development in civil justice of this era. Litigation finance is already transforming civil litigation at the level of the single case as well as, incrementally, at the level of the civil justice system as a whole. It is also beginning to transform the way law firms are doing business and it will increasingly shape the careers of civil litigators at firms small and large. Consequently, Congress, state legislatures, state and federal courts, bar associations, international arbitration institutions, as well as legislatures and courts in other nations are all proceeding along dozens of parallel tracks grappling with how to regulate litigation finance and especially with the question of what, if any, disclosure requirements to impost on such financing.
This Essay aims to turn the debate inside out by proposing to abandon the quest for a bright line rule and to instead adopt a flexible, discretionary standard; a balancing test. The Essay then culminates in a specific proposal for the contours – the interests and factors – which judges and arbitrators should be empowered and required to weigh when deciding whether and what form of disclosure to require. More specifically, the Essay details and rationalizes the specific interests – public and private – and factors to consider including the profile of the plaintiffs and their motive for seeking funding; the funder’s profile and motivation; the case type and the forum; the subject matter of the litigation; the potential effect on the development of the law; the structure of the financing; the purpose of the contemplated disclosure; and the procedural posture of the case
A Thought-Experiment Regarding Access to Justice in International Arbitration
No full textOne reason for the public outcry against third-party funding is the widespread perception that third -party funding is unbalancing our notions of party-driven dispute resolution processes and even-handed tribunals. In the aspirational vision of idyllic dispute resolution, an arbitrator or judge oversees the proper administration of the proverbial “scales of justice” in an orderly manner and “balances” out party power differentials calmly through procedural evenhandedness. Yet, third-party funding indisputably puts a gold-weighted thumb on the scale in favor of funded parties, particularly since funded cases already tend to be calculable winners on the merits, and since third-party funders seeking a profit generally do not fund cases that are demonstrably likely to lose on the merits.
Thus, we are left with the promising potential for winners to be more likely to win with third-party funding, and the alarming realization that not all parties are offered this same chance to win. For example, traditional for-profit third-party funders only fund cases from which they can make a profit; thus, many merit-based winners whose claims are too expensive to pursue relative to their claim value are turned down. Second, it is likely that longshot- winners – cases too risky even for a third-party funder that are, for example, rightfully arguing for a change in the law or relying on creative theories that require mental and verbal jujitsu to convince the decision-maker (i.e., the stuff of Hollywood films about courageous lawyers and citizens fighting against insurmountable odds) – are less likely to be funded as well. Third, defendant-winners may be less likely to be funded unless those defendants already have hefty funds at their disposal through which to pay the funder either a periodic premium or are willing to pay the funder from their own pockets (rather than from the proceeds of an award) upon winning the case. Fourth, non-financial winners – parties seeking non-financial remedies – are not likely to be funded unless they are willing to pay the funder from their own pockets, since there will be no monetary judgment upon winning the case. Fifth, political-winners are not likely to be funded, as many funders choose not to engage in funding of controversial positions and parties, which may be viewed as courageous or cowardly, depending on the type of party or issue at stake in the case. The foregoing examples collectively engender a larger, fundamental question: If funders are picking primarily winners – and more specifically winners that suit their business model – then what does real access to justice in international arbitration look like in an era of third-party funding? Would real access to justice need to involve third-party funders funding impecunious innocent respondents, or expensive long-shot claimants, or righteous injunctions with no monetary recovery, or unprofitable cases that espouse some worthy yet controversial position? Much has been written about access to justice in international arbitration. (4) This Article contributes to the conversation by presenting one theoretical framework to assess the level of access to justice that currently exists in international arbitration and determine pathways to increasing access to justice. This Article proposes a working definition of access to justice in international arbitration and then presents a simple thought experiment to assess which parties currently have access to justice in international arbitration and which parties may lack such access. This Article concludes by suggesting some next steps regarding how to increase access to justice in international arbitration