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A Hardy Case Makes Bad Law
Get PDFThis Article is the first ever to analyze a direct clash between the inherent power of US courts regarding the enforcement ofjudgments and the obligations of the United States as one of the 163 member countries of the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, commonly known as the ICSID Convention. The ICSID Convention includes a self-enforcement mechanism whereby the courts of the member countries are obligated to enforce the pecuniary obligations in multimillion (and sometimes over one billion) dollar ICSID arbitration awards as though they were court judgments of the domestic courts of that state, which includes domestic procedures for recognition and enforcement of domestic court judgments. Neither Congress nor the United States Supreme Court has addressed or resolved conflicts between US domestic law regarding enforcing court judgments and US obligations under the ICSID treaty. A recent draft of the forthcoming RESTA TEMENT (THIRD) OF THE US. LAW OF INTERNATIONAL COMMERCIAL AND INVESTOR-STATE ARBITRATION also notes that no cases have yet addressed this issue. However, this issue arose recently in the DC District Court case, Hardy Exploration & Production (India) Inc v. Government of India, Ministry of Petroleum & Natural Gas, 314 FSupp.3d 95 (D.D.C. 2018). The appeal of the DC District Court decision was withdrawn by the appellant before any briefs were filed in the DC Circuit; thus, this still remains a lacuna in US law.
This Article invents and analyzes two hypothetical case studies involving ICSID arbitration awards based on past cases in which a US court applied domestic law or domestic public policy to an investment treaty arbitration award enforced under the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as the New York Convention with 159 member countries. This Article guides US judges regarding the appropriate way to handle investment arbitration awards by using two New York Convention New York Convention arbitral awards as examples. This Article provides guidance regarding how US judges should handle those two awards had they instead been rendered under the ICSID Convention instead, in light of the self-enforcement obligations described above. The theoretical exercise presented in this Article provides future US courts with options to balance their obligations under the ICSID treaty with their inherent power over the enforcement of court judgments
Why You Can No Longer Get Lost in the Crowd
No full textWe are constantly exposed in public. Yet most of our actions will fade into obscurity. Do you, for example, remember the faces of strangers who stood in line with you the last time you bought medicine at a drugstore? Probably not. Thanks to limited memory and norms against staring, they probably don’t remember yours either.
This is what it means to be obscure. And our failure to collectively value this idea shows where we’ve gone wrong in the debates over data and surveillance.
Lawmakers and industry leaders are missing the big picture. They are stuck on traditional concepts like “transparency,” “consent” and “secrecy,” which leads to proposals that reinforce broken mechanisms like consenting to unreadable terms of service. They are operating under the dangerous illusion that there’s a clear distinction between what’s public and what’s private. Most people probably intuitively know that their most deeply held secrets are private while the things about them that are commonly known or widely broadcast are not. But what about information about our everyday actions that is shared with some but not all
Economic Theory of Criminal Law
Get PDFEconomic theory of criminal law consists of normative and positive parts. Normative economic theory, which began with writings by Beccaria and Bentham, aims to recommend an ideal criminal punishment scheme. Positive economic theory, which appeared later in writings by Holmes and Posner, aims to justify and to better understand the criminal law rules that exist. Since the purpose of criminal law is to deter socially undesirable conduct, economic theory, which emphasizes incentives, would appear to be an important perspective from which to examine criminal law.Positive economic theory, applied to substantive criminal law, seeks to explain and to justify criminal law doctrine in economic terms – that is, in terms that emphasize the incentive effects created by the law. The positive economic theory of criminal law literature can be divided into three phases: classical deterrence theory, neoclassical deterrence, and modern synthesis. The modern synthesis provides a rationale for fundamental criminal law doctrines, and also more puzzling portions of the law such as the doctrines of intent and necessity. Positive economic theory also provides a rationale for the allocation of enforcement responsibilities
Reforming Pensions While Retaining Shareholder Voice
Get PDFPublic pension and labor union funds have been the driving force in diversified shareholder activism. They have also fended off attacks on jobs and proactively created jobs for fund contributors. These funds currently represent almost $4 trillion in assets over which workers have substantial control. That worker control - and the collective nature of defined benefit pension plans - is the necessary precondition for their shareholder activism. Both worker control and collective investment are directly threatened by the rise of defined contribution funds, particularly by well-funded efforts to promote the 401(k) in the public sector, the last bastion of the traditional pension plan (unlike traditional pensions, defined contribution funds do not guarantee fixed payments to retirees). Due to a purported nationwide underfunding crisis for public pensions in particular - a crisis whose scale, scope and even existence is contested by economists and actuaries - many states and cities have wholly or partly abandoned, or are contemplating abandoning, collectively managed defined benefit pension plans in favor of 401(k) plans that are outsources to existing private mutual funds. Far more than legal reforms, like changing shareholder voting thresholds or the prospect of mandatory arbitration provisions, these reforms pose an existential threat to the ability of workers to wield the collective shareholder voice they now wield via defined benefit pension plans.This Article does not concede that traditional pensions should be reformed out of existence. There are excellent reasons to defend them, and excellent reasons to attack defined contribution funds. That said, to the extent that traditional pensions continue to be reformed out of existence, this Article illustrates that there are defined contribution alternatives to the 401(k) that would still preserve collective shareholder voice. This Article sketches out examples of defined contribution funds that could restore shareholder voice which the transition from defined benefit to 401(k) plans has stripped away, and could preserve that voice in jurisdictions that have not yet taken action
The Internet\u27s Safe Harbor Is Not Safe for Kids
No full textEach day, millions of children go online to view and interact with friends, fans, and strangers. But the anything-goes nature of the internet puts kids at risk on sites like Omegle, 4chan, and 8chan, where predators find victims and where harassers threaten and bully the vulnerable. Online interactions can manifest into physical violence and other forms of harm
Designing Development Programs for Non-Traditional Antibacterial Agents
Get PDFIn the face of rising rates of antibacterial resistance, many responses are being pursued in parallel, including ‘non-traditional’ antibacterial agents (agents that are not small-molecule drugs and/or do not act by directly targeting bacterial components necessary for bacterial growth). In this Perspective, we argue that the distinction between traditional and nontraditional agents has only limited relevance for regulatory purposes. Rather, most agents in both categories can and should be developed using standard measures of clinical efficacy demonstrated with non-inferiority or superiority trial designs according to existing regulatory frameworks. There may, however, be products with non-traditional goals focused on population-level benefits that would benefit from extension of current paradigms. Discussion of such potential paradigms should be undertaken by the development community
Hidden in Plain Sight: A More Compelling Case for Diversity
Get PDFFor four decades, the diversity rationale has offered a lifeline to affirmative action in higher education. Yet even after forty years, this critical feature of equal protection doctrine remains constitutionally insecure and politically fraught. Legal challenges persist, the Justice Department has launched a new assault on race-conscious admissions, and an impending shift on the Supreme Court could usher in an era of increased hostility toward the concept of diversity itself. The future of race-conscious admissions arguably hangs in the balance.
In this Article, I argue that the diversity rationale’s present fragility rests, in part, on its defenders’ failure to center diversity’s most compelling quality: its ability to promote personal equality within the university. To fill this void, this Article advances the first comprehensive case for diversity rooted in each student’s interest in an equal opportunity to enjoy, regardless of race, the full benefits of university membership. This framing is appealing, in part, because it makes salient the present and personal equality harms that students of color suffer when severely under-represented in predominately White institutions. Race conscious-admissions, in turn, emerge as an essential component of institutional efforts to further normative commitments—ranging from racial integration to individual meritocracy—that should resonate with Justices across the ideological spectrum.
To support this new framing, I resurrect the Supreme Court’s oft-forgotten pre-Brown desegregation cases. These decisions reinforce the constitutional infirmity of institutional conditions that compromise a student’s ability, because of her race, to access the full benefits of university membership. I then bridge the theory to social science that reveals how environmental cues—including racial demographics—can exact concrete and quantifiable burdens on students from negatively stereotyped groups. Although well-traveled in other domains, this research has only begun to inform legal scholarship
Equal Protection Design Defects
Get PDFOne can understand constitutional doctrine as a tool designed to effectuate the Constitution and its various provisions. Equal protection doctrine, in turn, comprises a set of Justice-made rules designed to realize the promise of equal protection under the law. The substance of that promise remains a topic of deep contestation. Nonetheless, more than forty years of constitutional jurisprudence have entrenched a vision of constitutional equality that privileges what I refer to herein as the “right to compete.” Simply put, the Supreme Court has repeatedly embraced the view that the Equal Protection Clause mandates the government to allocate public benefits — such as employment and admission — on the basis of a person’s individual “merit,” irrespective of their race.Scholars have long critiqued the individualistic and colorblind principles on which this vision rests. Less scholarship, in contrast, has explored whether the doctrine actually gives the Supreme Court what it says it wants. One might assume that it does. Yet growing empirical evidence from domains spanning employment, law enforcement, and education suggests quite the opposite. Specifically, findings from the mind sciences reveal that common facially neutral evaluative tools — such as human judgment, predictive algorithms, and standardized tests — can systematically mismeasure the existing talent and potential (that is, merit) of individuals from negatively stereotyped racial groups. Facially neutral measures of merit, it turns out, may often compromise the right to compete. Equal protection doctrine, which renders facially neutral state action presumptively constitutional, accordingly incentivizes conduct that exacts the precise harm that, according to the Supreme Court, the Fourteenth Amendment is designed to prevent
The Sanctuary of Prosecutorial Nullification
Get PDFIn the aftermath of the 2016 election, the shortcomings of existing sanctuary protections came sharply into focus.1 Historically, cities enacted sanctuary protections to extricate their law enforcement agencies from activities related to federal immigration enforcement. In sanctuary cities, local government agencies are typically restricted from sharing information with federal immigration authorities or from cooperating in apprehending individuals targeted for removal. 2 After the White House issued an Executive Order (EO) in late January 2017, many immigrant rights advocates recognized that external facing policies that proscribed direct cooperation would not suffice. 3 The EO announced that Immigration and Customs Enforcement (ICE) would prioritize removing any undocumented person charged or convicted of a crime, no matter how serious. 4 Recognizing the vital role state criminal courts play and would continue to play in fueling deportations, public defenders in New York City ( City ) identified a new actor with the power to enact stronger protections: the prosecutor. 5
Prosecutors are the most powerful actors in the American criminal legal system. 6 Their imperial discretion shapes how the law gets applied, who gets punished, and who is forgiven.7 It has always been true that a prosecutor\u27s charging, bail, and plea bargaining practices regularly expose noncitizens to the risk of removal. 8 Skillful defense negotiations can sometimes mitigate those consequences. 9 But, after January 25, 2017, the mere accusation of a crime, no matter how serious, created a heightened risk of removal for undocumented individuals. 10 Under this new enforcement regime, prosecutors became a more obvious focus for reform, as the actors responsible for leveling criminal charges. They remain an underappreciated source for sanctuary protections, however.12
This Article examines the role local prosecutors can play to isolate cities and states from the federal immigration enforcement regime, by describing a campaign launched days after the January 25, 2017 EO\u27s promulgation. The #NYCdontprosecute campaign demanded that local district attorneys (DAs) suspend prosecutions for broken windows offenses because of the heightened risk of removal prompted by a criminal charge. 13 Public defenders, who recognized the inadequacy of their standard tactics to mitigate the collateral consequences of contacts between law enforcement and noncitizens launched the campaign. 14 They asked the public to exert pressure on their adversaries in order to win greater protections for their clients. 1
Cops and Cars: How the Automobile Drove Fourth Amendment Law
Get PDFThis is an essay on Professor Sarah A. Seo’s new book, Policing the Open Road: How Cars Transformed American Freedom (Harvard Univ. Press 2019). I focus on Professor Seo’s analysis of Carroll v. United States, 267 U.S. 132 (1925) and Brinegar v. United States, 338 U.S. 160 (1949). Carroll is important not only because it was the Court’s first car case. Understanding Carroll (and Brinegar, which solidified and expanded Carroll’s holding) is essential because, nearly one hundred years later, its logic continues to direct how the modern Court resolves Fourth Amendment claims of motorists. Put simply, a majority of today’s Justices view the Fourth Amendment rights of motorists essentially the same way that a majority of the Justices did in 1925. Specifically, Part I highlights Seo’s major assertions regarding Carroll; Carroll’s influence on another controversial search and seizure decision, Terry v. Ohio, 392 U.S. 1 (1968), which upheld an officer’s power to stop and frisk a person he suspects is armed and dangerous; and finally, Carroll’s connection to the police authority upheld by the Justices that permits the discretionary and discriminatory policing that currently pervades America’s highways and roads.Part II of this essay focuses on the modern Court’s understanding of motorists’ privacy. Carroll’s vision of how the Fourth Amendment applies to searching cars was not inescapable. While many lawyers and law students today might not believe it, not so long ago several members of the Burger Court took the view that cars should be treated like other effects under the Fourth Amendment – which meant the warrant requirement would apply to cars. Though a majority of Justices never embraced the view that warrants are required to search the interior of vehicles, in a series of cases the Court went back and forth on whether warrants were needed to search private containers found in vehicles. Part II examines these cases and the Court’s flawed norm that motorists have diminished privacy interests in closed containers found in cars when police have probable cause to search. One could view these cases as adopting a narrower view of motorists’ privacy rights than the view embraced by Carroll. More importantly, the understanding that currently permits warrantless searches of suitcases and purses under the automobile exception, if meant to be a neutral principle, would also allow warrantless searches of computers and cell phones found in cars. I examine whether today’s Court will apply the automobile exception to searches of computers, cell phones and other electronic devices found in vehicles