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Disinformation on Steroids: The Threat of Deep Fakes
No full textDeep fakes are a profoundly serious problem for democratic governments and the world order. A combination of technology, education, and public policy can reduce their effectiveness
The Practice and Tax Consequences of Nonqualified Deferred Compensation
Get PDFAlthough nonqualified deferred compensation plans lack explicit tax preferences afforded qualified plans, it is well understood that nonqualified deferred compensation results in a joint tax advantage when employers earn a higher after‐tax return on deferred sums than employees could do on their own. Several commentators have proposed tax reform aimed at leveling the playing field between cash and nonqualified deferred compensation, but reform would not be easy or straightforward. This Article investigates nonqualified deferred compensation practices and shows that joint tax minimization often takes a backseat to accounting priorities and participant diversification concerns. In practice, the largest source of joint tax advantage likely stems from use of corporate owned life insurance (COLI) to informally fund nonqualified deferred compensation liabilities, suggesting that narrow reform aimed at COLI use might be a more attractive policy response than fundamental reform of the taxation of nonqualified deferred compensation
Letter to the Hon. Sen. Orrt (NYS Senate) Regarding Litigation Finance (Lawsuit Lending) (2018)
Get PDFFollowing testimony to the New York State Senate\u27s Standing Committee on Consumer Protection (available on SSRN and YouTube), Professor Steinitz was asked to elaborate on her recommendation for a statutory minimum recovery requirement to protect consumers of litigation financing. Enclosed is her response to this inquiry
The Huawei Arrest: How It Likely Happened and What Comes Next
No full textCanada’s recent arrest of Meng Wanzhou, chief financial officer of Chinese telecoms giant Huawei, has abruptly revived fears of a trade war between the United States and China. Indeed, this single arrest has potentially thwarted recent G-20 diplomacy between the world’s two largest economies. The case thus dramatically exemplifies “foreign affairs prosecutions,” or U.S. criminal cases involving a foreign country. Cases such as these—often involving fugitive apprehension abroad—are characterized by prosecutorial decisions with foreign policy ramifications. But should they be treated as foreign policy cases, where the executive branch gets special deference? Or as federal criminal prosecutions subject to strict and searching judicial scrutiny? This post asks how the arrest happened and why recognizing this case as a foreign affairs prosecution clarifies what comes next
The Social Enterprise Life Cycle
No full textThe Social Enterprise Life Cycle – gaining legitimacy, pursuing growth, and achieving stability – unfolds both at the level of the individual firm and collectively across the social enterprise sector. Much of the work of social enterprise law to date has focused on legitimating the double bottom line through the development of specialized legal forms of organization. These efforts have been extraordinarily successful in making such forms available, even cracking the gold standard of Delaware law. Such advances not only provide individual entrepreneurs with vehicles perfectly suited to their double bottom-line ventures, but also broadcast an institutional embrace of social enterprise’s unconventional blend of profits and public benefit.
Now, the emphasis should begin to shift toward fueling the expansion of the sector. For social enterprise law to continue to catalyze the social enterprise sector, it must move beyond developing forms of organization to deploying tools for growth. Lawyers and legal scholars can and should turn to designing tools to help entrepreneurs and investors find and trust each other, and to persuade employees, consumers, and other key constituencies to have faith in the resolve of their counterparts. Success will allow individual firms to raise the capital they need to expand, nourishing the entire sector. Failure will leave social entrepreneurs without the resources they need to scale up a fledgling venture while preserving its double bottom line.
Finally, in order for the social enterprise sector to flourish over the long term, social enterprise law must help commitments to social missions survive over time. If each venture’s blend of private profit and public benefit can survive through successive owners and beyond the demise of any particular entity, social enterprise writ large will display the same stability. This chapter charts the challenges of the Social Enterprise Life Cycle and offers legal tools and technologies designed to help the social enterprise movement – and individual social enterprises – navigate its path.
Just as social enterprise writ large seeks legitimacy, growth, and, perhaps, a kind of immortality, so too do individual double bottom-line ventures. Those social enterprises are all for-profit firms that pursue profits for owners while achieving social good. But they are not all alike. Social enterprises fill every conceivable niche in terms of the products they sell and the services they provide. Over time, they also occupy very different positions in the Social Enterprise Life Cycle. While any venture matures through different stages, the hybrid nature of double bottom-line ventures lends the Social Enterprise Life Cycle particular significance. At distinct points in a social enterprise’s evolution, different threats to its chosen balance of profit and social mission wax and wane.
At inception, social enterprises need to ensure they have a safe space in which to pursue their dual missions and to differentiate themselves from other firms in the marketplace. Specialized legal forms can assist in both efforts, legitimizing the double bottom-line concept internally for fiduciaries and managers, and broadcasting it to investors, employees, suppliers, and consumers. As social enterprises seek to demonstrate proof of concept, grow, and scale, their needs for resources increase. To meet them, social entrepreneurs need to identify mission-committed investors, employees, and consumers, and persuade them their own mission commitments can be trusted. Here again, the law offers solutions: this time in the form of creative contracts – mission-protecting poison pills (MP3s) – that include reliable signals and enforcement mechanisms. Even as the shadow of senescence falls over social enterprises, deal structures and governance regimes can be designed to steward social missions through sale or dissolution
Third-Party Financing in Investment Arbitration
No full textThis Chapter identifies and explains the effect of third-party funding on the financial aspects of international investment treaty cases. Indeed, the increased visibility of third-party funding coupled with the increasingly novel and complex ways that these arrangements are carried out make it a fascinating development in the world of disputes.
Third-party funding is particularly relevant in the context of damages because, ultimately, the magnitude of damages of any claim is one of the determining factors influencing whether a claim will be financed and, if so, at what level.
This Chapter explores the different types of third-party funding, how it is obtained, the current state of regulation, the scope of disclosure obligations, the treatment of third-party funding by international investment tribunals, the impact of funding on security for costs applications and quantum calculations, and the influence of third-party funding on settlement
Can Work Be Required in the Medicaid Program
Get PDFOn January 11, 2018, a new policy encouraging states to develop work requirements in their Medicaid programs was issued by the Centers for Medicare and Medicaid Services (CMS).1 Under this policy, states can require nonelderly, nondisabled adults to work or engage in community service to qualify for Medicaid coverage, unless they are deemed medically frail or have a substance use disorder. States will be permitted to require detailed reporting on work status, decide who will be exempt from these requirements, and impose lockout periods for those who do not comply. For example, Kentucky’s newly approved program requires at least 80 hours of work or community engagement per month, or beneficiaries risk lockout
From Emmett Till to Trayvon Martin: The Persistence of White Womanhood and the Preservation of White Manhood
No full textOn February 26, 2012, George Zimmerman, a man of White American and Peruvian descent, shot and killed Trayvon Martin, a Black teenager who was walking back to the home where he was a guest in Sanford, Florida. For many, Trayvon Martin is this generation’s Emmett Till, the fourteen-year-old Black boy who was lynched in Mississippi in 1955 for whistling in a White woman’s presence. In fact, several scholars have highlighted similarities between the Till and Martin tragedies. One unexplored commonality is the manner in which defense counsel in both the Till and Martin trials used the trope of protecting White womanhood to get the jurors to psychologically identify and empathize with the defendants. Employing Multidimensional Masculinities Theory, this essay seeks to expose the role that the protection of White womanhood (and thus the preservation of White manhood) played in the killings of Till and Martin and in each of their killers’ defense strategies at trial. It does so by offering a history of lynching; explaining how White men demonstrated their ownership of White women and their dominance over Blacks by using violence against Black men who threatened the social order; and revealing how the defense attorneys in both the Till and Martin cases manipulated and employed the narrative of the White male protector of White women to facilitate acquittals for their clients. In so doing, it analyzes the transcript from the Till trial, a transcript previously believed to be lost forever until the FBI discovered the transcript upon its re-opening and investigation of the Till murder and released the transcript in 2006. Finally, utilizing excerpts from the trial transcript in the Martin case, this essay reveals how the trope of protecting White womanhood shaped the outcome in the Martin case, even though the stock narrative of needing White female protection from purportedly dangerous Black men was not at all related to the claims about Martin or charges against Zimmerman. In so doing, this essay reveals (1) how White womanhood has been abstracted to encompass not only a specific woman in an incident and to include not only a “man’s” home, but also to include broader spaces like gated communities, and (2) how that reality, coupled with the way that civil rights laws have made it harder for White men to bully Black men and the way that feminism has made it harder to subordinate women, has produced a new masculine anxiety for White men
Assessing the Impact of the Global Compacts on Refugees and Migration in the Middle East
Get PDFToday, the overwhelming burden of the global refugee and migrant crisis is borne by the Middle East region, driven by protracted armed conflict and exacerbated by a deficit of applicable international legal norms. Most States in the Middle East have not adopted the international treaties that provide protection guarantees for refugees and stateless persons, the 1951 Refugee Convention and its 1967 Protocol, the 1954 Convention on the Status of Stateless Persons, and the 1961 Convention on the Reduction of Statelessness. The lack of legal status for persons displaced by conflict, many of whom are stateless refugees, leaves them in situations of protracted vulnerability in host States with no apparent solutions. These populations have become among the largest and longest-standing intergenerational stateless refugees in the world, remaining in a region that is perceived as endlessly mired in conflict, sectarian strife, terrorism, and a democracy deficit. Huge numbers of refugees, stateless people, and other displaced persons considerably strain already-scarce resources in countries such as Lebanon, where one in four persons today is a refugee, or Jordan, which is the fourth-most water-stressed country in the world. The Global Compact on Refugees (Refugee Compact) and the Global Compact on Safe, Orderly and Regular Migration (Migration Compact) may provide a timely and much-needed impetus to re-energize local strategies aimed at filling these normative legal gaps through regional, rather than international, agreements. Regional (Arab) and Islamic agreements such as the Arab Charter on Human Rights, the Organization of the Islamic Conference’s (OIC) Covenant on the Rights of the Child in Islam, and the Protocol for the Treatment of Palestinians in Arab States (Casablanca Protocol), all of which have relevant provisions on nationality, refugees, and statelessness, are being re-evaluated through the Global Compact processes, while most of the parallel international treaties continue to lack credibility in the region