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El alcance extraterritorial de los delitos de cuello blanco de los Estados Unidos
Get PDFEn mayo de 2016, el jefe de la Sección Penal del Departamento de Justicia de los Estados Unidos (DOJ, por sus siglas en inglés) dijo durante un discurso que pronunció sobre el alcance de la ley de EE. UU. en el extranjero: “El departamento no pretende ser el cuerpo policial del mundo: pero podemos - y creo que debemos- liderar con el ejemplo: al investigar y enjuiciar enérgicamente el delito internacional cuando éste viola las leyes estadouidenses por medio de mantener y aumentar naciones en la lucha compartida de proteger nuestros mercados, nuestras redes y nuestros ciudadnos.” El DOJ tiene una perspectiva muy agresiva en cuanto al alcance extraterritorial de las leyes de los Estados Unidos. Mientras que los tribunales de este país tienen distintas opiniones sobre este tema, el DOJ no duda en acusar a individuos y negocios en el extranjero de conducta delictiva que, con frecuencia, resulta en que el acusado acepte un arreglo para evitar un proceso penal. Comprender el alcance potencial del compromiso del DOJ de investigar y enjuiciar «enérgicamente» el crimen en otros países, también conocido como delitos extraterritoriales, hace evidente que el conocimiento del alcance de la ley penal estadounidense es esencial para los abogados de otros países, especialmente para aquellos de Centroamérica, donde los intereses empresariales estadounidenses a menudo son un factor. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ In May 2016, the head of the Criminal Section of the United States Department of Justice (DOJ, for its acronym in English) said during a speech he delivered on the scope of the law of USA abroad: “The department does not claim to be the police force of the world: but we can - and I think we must - lead by example: by investigating and prosecuting vigorously the international crime when it violates United States law by keeping and increase nations in the shared struggle of protect our markets, our networks and our citizens.” The DOJ has a very aggressive outlook on to the extraterritorial reach of the laws of the United States. While the courts of this country have differing views on this issue, the DOJ has no hesitation in accusing individuals and businesses abroad of criminal conduct that frequently results in the defendant agreeing to a settlement to avoid penal prosecution. Understand the potential scope of the compromise of the DOJ to vigorously investigate and prosecute the crime in other countries, also known as felonies extraterritorial, makes it clear that the knowledge of the scope of American criminal law is essential for lawyers from other countries, especially for those of Central America, where the interests corporate America are often a factor
My Teacher, My Friend
Get PDFIn 1977, I think it was, the Yale law faculty considered whether to bar recruiters who discriminated against gays and lesbians-most notably the military-from interviewing students on campus. With the faculty then dominated by liberal giants, one might think the ban would have been a matter of little controversy. But the liberals thought the matter complex, so many interests to consider, nuance, nuance everywhere.
Geoff Hazard was not a liberal giant of that faculty. He was a titan and stood in awe of no giant, liberal or conservative-and there were conservative giants on the faculty then too, albeit fewer in number. Geoff was conservative, in the true and now oh-so-rare sense of that word. A man who believed in the conservation of core principles, those worthy of a decent and free society. In stark contrast to his colleagues, all tangled up in the supposed complexity of the matter before the faculty that day, Geoff saw past all that. As always, he spoke succinctly: The matter is simple. First, it was blacks, then Jews. Irish, Italians. Now gays. The discriminating entities should be banned from campus. And Geoff voted that way. Before I graduated in 1978, the measure passed
The Upside of Deep Fakes
Get PDFIt’s bad. We know. The dawn of “deep fakes” — convincing videos and images of people doing things they never did or said — puts us all in jeopardy in several different ways. Professors Bobby Chesney and Danielle Citron have noted that now “false claims — even preposterous ones — can be peddled with unprecedented success today thanks to a combination of social media ubiquity and virality, cognitive biases, filter bubbles, and group polarization.” The scholars identify a host of harms from deep fakes, ranging from people being exploited, extorted, and sabotaged, to societal harms like the erosion of democratic discourse and trust in social institutions, undermining public safety, national security, journalism, and diplomacy, deepening social divisions, and manipulation of elections. But it might not be all bad. Even beyond purported beneficial uses of deep-fake technology for education, art, and science, the looming deep-fake disaster might have a silver lining. Hear us out. We think deep fakes have an upside.Crucial to our argument is the idea that deep fakes don’t create new problems so much as make existing problems worse. Cracks in systems, frameworks, strategies, and institutions that have been leaking for years now threaten to spring open. Journalism, education, individual rights, democratic systems, and voting protocols have long been vulnerable. Deep fakes might just be the straw that breaks them. And therein lies opportunity for repair. Below we briefly address some deep problems and how finally addressing them may also neutralize the destructive force of deep fakes. We only describe three cultural institutions – education, journalism, and representative democracy — with deep problems that could be strengthened as a response to deep fakes for greater societal gains. But we encourage readers to think up more. We have a hunch that once we harness the upside of deep fakes, we may unlock creative solutions to other sticky social and political problems
Index Funds and the Future of Corporate Governance: Theory, Evidence, and Policy
Get PDFIndex funds own an increasingly large proportion of American public companies. The stewardship decisions of index fund managers—how they monitor, vote, and engage with their portfolio companies—can be expected to have a profound impact on the governance and performance of public companies and the economy. Understanding index fund stewardship, and how policymaking can improve it, is thus critical for corporate law scholarship. In this Article we contribute to such understanding by providing a comprehensive theoretical, empirical, and policy analysis of index fund stewardship./= / \u3e/= / \u3eWe begin by putting forward an agency-costs theory of index fund incentives. Stewardship decisions by index funds depend not just on the interests of index fund investors but also on the incentives of index fund managers. Our agency-costs analysis shows that index fund managers have strong incentives to (i) underinvest in stewardship and (ii) defer excessively to the preferences and positions of corporate managers./= / \u3e/= / \u3eWe then provide an empirical analysis of the full range of stewardship activities that index funds do and do not undertake. We analyze four dimensions of the Big Three’s stewardship activities: the limited personnel time they devote to stewardship regarding most of their portfolio companies; the small minority of portfolio companies with which they have any private communications; their focus on divergences from governance principles and their limited attention to other issues that could be significant for their investors; and their pro-management voting patterns./= / \u3e/= / \u3eWe also empirically investigate five ways in which the Big Three could fail to undertake adequate stewardship: the limited attention they pay to financial underperformance; their lack of involvement in the selection of directors and lack of attention to important director characteristics; their failure to take actions that would bring about governance changes that are desirable according to their own governance principles; their decision to stay on the sidelines regarding corporate governance reforms; and their avoidance of involvement in consequential securities litigation. We show that the body of evidence is, on the whole, consistent with the incentive problems that our agency-costs framework identifies./= / \u3e/= / \u3eFinally, we put forward a set of reforms that policymakers should consider in order to address the incentives of index fund managers to underinvest in stewardship, their incentives to be excessively deferential to corporate managers, and the continuing rise of index investing. We also discuss how our analysis should reorient important ongoing debates regarding common ownership and hedge fund activism./= / \u3e/= / \u3eThe policy measures we put forward, and the beneficial role of hedge fund activism, can partly but not fully address the incentive problems that we analyze and document. These problems are expected to remain a significant aspect of the corporate governance landscape and should be the subject of close attention by policymakers, market participants, and scholars./= / \u3e/= / \u3eThis paper is part of a larger project on the incentives of investment managers that also includes The Agency Problems of Institutional Investors (with Alma Cohen) and The Specter of the Giant Three
The Future of Administrative Law Judge Selection
No full textAdministrative law judges (ALJs) are the workhorses of the administrative state. They preside over thousands of hearings annually in areas such as disability benefits, international trade, taxation, environmental law, occupational safety, and communications law, to name a few. There are nearly 2,000 ALJs employed by 28 agencies in the federal government, as compared to 870 authorized Article III federal judgeships.
Keeping this corps of ALJs fully staffed requires numerous appointments annually. Last year, in a decision that likely applies to most if not all federal ALJs, the U.S. Supreme Court held in Lucia v. SEC that SEC adjudicators are “officers of the United States” who must be appointed in accordance with the Constitution’s Appointments Clause. Assuming that ALJs are “inferior officers,” this clause allows Congress to delegate the appointment of ALJs to the President alone, to department heads, or to courts of law. Shortly after the decision in Lucia, President Trump issued an executive order that made significant changes to the ALJ hiring process
Hardball vs. Beanball: Identifying Fundamentally Antidemocratic Tactics
Get PDFThe “constitutional hardball” metaphor used by legal scholars and political scientists illuminates an important phenomenon in American politics, but it obscures a crisis in American democracy. In baseball, hardball encompasses legitimate tactics: pitching inside to brush a batter back but not injure, hard slides, hard tags. Baseball fans celebrate hardball. Many of the constitutional hardball maneuvers previously identified by scholars have been legitimate, if aggressive, constitutional political moves. But the label “hardball” has been interpreted too broadly to include illegitimate, fundamentally undemocratic tactics. I suggest a different baseball metaphor for such tactics: beanball, pitches meant to injure and knock out the opposing player, against the basic rules of the game.
In this Reply to Fishkin, Pozen, and Bernstein, I first address Bernstein’s examples of President Barack Obama and Democrats engaging in hardball. I note that Fishkin and Pozen’s “asymmetry” thesis acknowledged clearly that Democrats play hardball, even if not as aggressively as Republicans have. I discuss government shutdowns, birtherism, debt ceiling threats, abuses of the Department of Justice (DOJ), and the contrasting manipulations leading to the Iraq War versus the Iran nuclear deal.
This Reply then identifies examples of Republicans’ fundamentally antidemocratic beanball: voter ID laws and other voting restrictions, extreme gerrymandering, marginalizing racial minorities, and abusing the DOJ. Beanball’s destructive politics reflect racial status anxiety, paranoia, and a panic over dispossession and the loss of historical privilege
Practical Equality: Forging Justice in a Divided Nation
Get PDFRobert L. Tsai offers a stirring account of how legal ideas that aren’t necessarily about equality have often been used to overcome resistance to justice and remain vital today. From the oppression of emancipated slaves after the Civil War, to the internment of Japanese Americans during World War II, to President Trump’s ban on Muslim travelers, Tsai applies lessons from past struggles to pressing contemporary issues.https://scholarship.law.bu.edu/books/1254/thumbnail.jp
Federal Administrative Law, 8th ed.
No full texthttps://scholarship.law.bu.edu/books/1217/thumbnail.jp
Stewart v Azar and the Purpose of Medicaid: Work as a Condition of Enrollment
No full textOn June 29, 2018, a federal district court found that the US Department of Health and Human Services (HHS) did not properly approve Kentucky’s application for a controversial Medicaid waiver, the first to require work as a condition of eligibility.1 Because HHS’s approval was vacated, Kentucky’s Medicaid program was required to continue as if no waiver existed, but 3 other states had already received HHS approval to proceed with work requirements. This article provides context for understanding the relevance of work requirements to implementation of Medicaid expansion under the Patient Protection and Affordable Care Act (hereinafter, Affordable Care Act),2 discusses the district court’s decision, and considers what may come next
SFFA v. Harvard: How Affirmative Action Myths Mask White Bonus
Get PDFIn the ongoing litigation of Students for Fair Admissions v. Harvard College, Harvard faces allegations that its once-heralded admissions process discriminates against Asian Americans. Public discourse has revealed a dominant narrative: affirmative action is viewed as the presumptive cause of Harvard’s alleged “Asian penalty.” Yet this narrative misrepresents the plaintiff’s own theory of discrimination. Rather than implicating affirmative action, the underlying allegations portray the phenomenon of “negative action” — that is, an admissions regime in which White applicants take the seats of their more qualified Asian-American counterparts. Nonetheless, we are witnessing a broad failure to see this case for what it is. This misperception invites an unnecessary and misplaced referendum on race-conscious admissions at Harvard and beyond