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Corporate Personhood and the History of the Rights of Corporations: A Reflection on Adam Winkler’s Book We the Corporations: How American Businesses Won Their Civil Rights
Get PDFAdam Winkler’s book We the Corporations: How American Businesses Won Their Civil Rights is an impressive work on several different levels. Because so much of the development of American constitutional law over the centuries has involved businesses, the book is a nearly comprehensive legal history of federal constitutional law. It certainly would be worthwhile reading for anyone interested in the constitutionality of economic regulation in the United States, spanning the controversies over the first and second Banks of the United States, through the Lochner era and present-day clashes over corporate campaign spending, and religiously-based exemptions to generally applicable laws such as the requirement that employer-offered health insurance policies cover birth control
A Bad Rap : R. v. \u3cem\u3eSkeete\u3c/em\u3e and the Admissibility of Rap Lyric Evidence
Get PDFThe use of accused-authored rap lyric evidence is no longer rare in Canadian criminal proceedings. Adduced by Crown prosecutors, rap lyrics written or co-written by an accused are increasingly used in criminal trials as evidence of the accused’s intent, knowledge, motive, identity, or confession to the commission of the specific offence charged. The practice is not without controversy.1 The introduction of an accused’s artistic work in the form of rap lyrics at trial engages trial fairness concerns. Without a keen awareness of the social and cultural context that produces rap music, trial actors risk inflating their probative value and underestimating their prejudicial effect. The 2015 Ontario Superior Court of Justice decision in Campbell2 attempted to redress this problem by proposing a specific rule governing the admissibility of rap lyric evidence. Under this rule, rap lyrics would have to have a concrete nexus to the offence charged before those lyrics could be admissible at trial. This rule was not adopted by the Ontario Court of Appeal. In its 2017 Skeete3 decision, the Court instead held that rap lyric evidence is admissible where relevant, material, and not excluded by a specific rule of evidence.4 On this basis, the Court found that an accused-authored rap lyric was admissible and properly before the jury at trial.5 By failing to adopt a rap specific approach to the admissibility of rap lyric evidence, the decision represents a troubling paradigm for the reception of accused-authored rap lyric evidence.
This article analyses the current evidentiary threshold for the reception of accused-authored rap lyric evidence.6 It argues that the current threshold jeopardizes trial fairness by allowing the Crown to adduce highly prejudicial rap lyric evidence at trial. It proceeds in three parts: Part I provides a contextualization of the issues. Part II examines the Campbell decision. Part III evaluates how the Skeete decision differs from Campbell, and provides a relatively low admissibility threshold for accused-authored rap lyric evidence. This article concludes by advocating for the adoption of the Campbell approach with modifications
The Trump-Bolton Misdirection on Russian Extradition: Plenty of Legal Options Exist to Gain Custody of Russian Suspects
No full textOn Sunday, President Donald Trump stated he “hadn’t thought of” pressing Vladimir Putin to extradite the dozen Russian nationals indicted earlier that week by Special Counsel Robert Mueller. When asked why not, National Security Adviser John Bolton gave a response that sounded legalistic: it would be “pretty silly” for President Trump to request the Russian fugitives’ extradition, he contended, because the United States lacks an extradition treaty with Russia and Russian law forbids extradition of its own nationals. Both should know better. Their comments suggest not that the Administration lacks legal options, but that it has no political will to seriously seek custody of the Russian fugitives
Corporate Social Responsibility and Social Media Corporations: Incorporating Human Rights through Rankings, Self-Regulation and Shareholder Resolutions
Get PDFThis article examines the emergence and evolution of selected ranking and reporting frameworks in the expanding realm of business and human rights advocacy. It explores how indicators in the form of rankings and reports evaluating the conduct of transnational corporate actors can serve as regulatory tools with potential to bridge a global governance gap that often places human rights at risk. Specifically, this article examines the relationship of transnational corporations in the Internet communications technology sector (ICT sector) to human rights and the risks presented to the right to freedom of expression and the right to privacy when ICT sector companies comply with government demands to disclose user data or to conceal information users seek. Specifically, it explores the controversial role of transnational ICT corporations in state censorship and surveillance practices. The article explains how conflicts over corporate complicity in alleged abuses served to catalyze change and lead to the creation of the Global Network Initiative, a private multi-stakeholder project, and the Ranking Digital Rights Initiative, an industry independent market-based information effort. Both aim to promote more responsible business practices in the social media industry sector. In conclusion, the article argues that regulating corporate reporting of information relevant to assessing the potential for adverse human rights impacts is necessary
Managing the Future of Energy Storage: Implications for Greenhouse Gas Emissions
No full textWith rapidly advancing technology and declining manufacturing costs, energy storage systems are becoming a central element in many energy policy debates. Policymakers see storage as a potential solution to the challenges that stem from the intermittency of certain renewable resources, such as solar and wind. Storage systems are therefore considered key to hastening the clean energy revolution, and are at the nexus of energy and climate change policy. Reductions in greenhouse gas emissions are often a stated goal of policymakers encouraging energy storage installation. Energy storage systems, undoubtedly, will be a key part of the future of the electric grid. They have the potential to provide many benefits to the grid, such as lowering the price of electricity at peak demand times, and deferring or avoiding new capacity investments. However, contrary to the prevailing wisdom, energy storage is not guaranteed to reduce emissions, and may, in fact, increase emissions if policies are not designed carefully. Further, while this oft-cited (but not guaranteed) benefit of storage dominates headlines in policy discussions around the country, many other types of benefits that energy storage systems can provide are not well recognized in policymaking. This report seeks to be a resource to policymakers interested in maximizing the benefits of energy storage. It highlights the underappreciated benefits of energy storage and discusses the ways in which current policies are failing to encourage socially optimal deployment of storage technology. As policymakers start to rely more heavily on energy storage systems to achieve clean energy goals and other improvements to the grid, it is helpful to first understand the ways that the current regulatory and policy landscape fails to reward storage systems for the variety of benefits they provide to the grid, including ancillary benefits such as frequency regulation. Further, policymakers must keep in mind that the greenhouse gas impact of energy storage depends primarily upon whether the type of generation used to charge the storage is cleaner than the type of generation avoided when the storage is used; otherwise, storage could produce pernicious results. Policy reforms that account for the range of benefits provided by storage, including reduced air pollution, are required at both state and federal levels. This report recommends that policymakers focus on: • Accurately pricing externalities caused by greenhouse gases; • Eliminating entry barriers for energy storage systems; and • Eliminating barriers to multiple value streams. This report outlines what is needed to realize each of these three goals and provides an overview of state and federal actions currently under way
Racial Character Evidence in Police Killing Cases
Get PDFThe United States is facing a twofold crisis: police killings of people of color and unaccountability for these killings in the criminal justice system. In many instances, the officers’ use of deadly force is captured on video and often appears clearly unjustified, but grand and petit juries still fail to indict and convict, leaving many baffled. This Article provides an explanation for these failures: juror reliance on “racial character evidence.” Too often, jurors consider race as evidence in criminal trials, particularly in police killing cases where the victim was a person of color. Instead of focusing on admissible evidence, jurors rely on race to determine the defendant’s innocence, the victim’s propensity for violence, and the witnesses’ credibility. This Article delineates the ways in which juror racial bias is utilized to take on evidentiary value at trial and constructs evidence law solutions to increase racial equality in the courtroom
Brief of the Legal Aid Society, Bronx Defenders, Brooklyn Defender Services, Community Service Society of New York, Center on the Administration of Criminal Law at New York University School of Law, Center on Race, Law and Justice at Fordham University Law School, Katal Center for Health, Equity, and Justice, and Brooklyn Community Bail Fund in Support of Plaintiff-Appellant
Get PDFIn upholding the constitutionality of the officers’ prolonged detention of Mr. Vargas, the lower court inaccurately assumed that Mr. Vargas was labeled a “transit recidivist” by the New York City Police Department (NYPD) as a result of either an open warrant or a prior conviction.3 The amici submit this brief to correct this misconception.4 The NYPD actually labels New York subway riders “transit recidivist” based on a much broader, constitutionally compromised database that includes prior arrests and summons that have been dismissed, declined prosecution or otherwise terminated in favor of the accused
Making Innovation More Competitive: The Case of Fintech
Get PDFFinance startups are offering automated advice, touchless payments, and other products that could bring great societal benefits, including lower prices and expanded access to credit. Yet unlike in other digital arenas in which American companies were global leaders, such as search engines and ride hailing, the U.S. has lagged in consumer finance. This Article posits that the current competition framework is holding back consumer financial innovation. It then identifies a contributor that has yet to be articulated: the organizational design of administrative agencies. Competition authority—including antitrust and the extension of business licenses—is spread across at least five regulators. Each is focused on other missions or industries. The Federal Reserve and other prudential regulators prioritize financial stability, which conflicts with their competition mandate. The Department of Justice (DOJ), hindered by statutes and knowledge gaps, devotes significantly fewer resources to banking than to other industries in merger review. No regulator has the right authority, motivation, and expertise to promote competition in consumer finance. Innovation has raised the stakes for fixing this structural flaw. If allowed to compete fully, financial technology challengers (“fintechs”) could bring large consumer welfare advances and reduce the size of “Too Big To Fail” banks, thereby lessening the chances of a financial crisis. If allowed to grow unchecked, either fintech startups or the big banks acquiring them may reach the size of technology giants, thereby increasing systemic risk. Whether the goal is to benefit consumers, strengthen markets, or prevent crises, a reallocation of competition authority would better position regulators to navigate the future of innovation
The Rise of Fiduciary Law
Get PDFThe law that defines and regulates fiduciary relationships appears in many legal areas, such as family law, surrogate decision-making, international law, agency law, employment law, pension law, remedies rules, banking law, financial institutions\u27 regulation, corporate law, charities law not for profit organizations law, and the law concerning medical services.
Fiduciary relationships, and the concepts on which they are grounded, appear not only in the law. They appear in other areas of knowledge: economics, psychology; moral norms and pluralism. Fiduciary law has a very long history. It was recognized in Roman law and the British common law and appeared decades ago in religious laws, such as Jewish law, Christian law, and Islamic law. Internationally, fiduciary law has a place in European legal system in Chinese law, Japanese law and Indian law.
This article offers an explanation to the evolution and expansion of fiduciary principles and a prediction of their future. Part One opens with a short description of fiduciary relationships, and the conditions under which they arise. Part Two describes the evolution of specialization of living being–from genetic to chosen cooperative specialization. Part Three notes the positive and negative social impact of fiduciary relations and the response of the law designed to encourage the relationships while discouraging the abuse they might lead to. Part four of the article highlights the criticism of fiduciary law and alternative solutions to the issues raised by fiduciary relationships. Part Five offers a prediction about the future of fiduciary law