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Reparations for Slavery and Jim Crow, Its Assumptions and Implications
Get PDFAlthough slavery was abolished in 1865, racial subordination was maintained under Jim Crow, and those wrongs have caused lasting harms. Governments, institutions, and individuals (including corporations) are morally accountable today if they supported or profited from slavery or Jim Crow. Reparations would include cash payments, but moral wrongs are not fully repaired by material compensation. Slavery and Jim Crow were total systems predicated on a persisting ideology of white supremacy. Reparations should enable those wronged to rebuild their lives, free of oppressive racism
The Internet Will Not Break: Denying Bad Samaritans Section 230 Immunity
Get PDFWhat do a revenge pornographer, gossip-site curator, and platform pairing predators with young people in one-on-one chats have in common? Blanket immunity from liability, thanks to lower courts’ interpretation of section 230 of the Communications Decency Act (CDA) beyond what the text, context, and purpose support. The CDA was part of a campaign — rather ironically in retrospect — to restrict access to sexually explicit material online. Lawmakers thought they were devising a safe harbor for online providers engaged in self-regulation. The CDA’s origins in the censorship of “offensive” material are inconsistent with outlandishly broad interpretations that have served to immunize from liability platforms dedicated to abuse and or those that deliberately tolerate illegality.
In contrast to a strike-oriented view of the CDA’s safe harbor, its modest revision will not break the “Internet.” Whether this would have been true at the time of its passage two decades ago, it would not be true today. Conditioning immunity from liability on reasonable efforts to address unlawful activity would not end innovation or free expression as we know it. The current environment of perfect impunity for platforms deliberately facilitating online abuse is not a win for free speech because harassers speak unhindered while the harassed withdraw from online interactions. With modest adjustments to section 230, either through judicial interpretation or legislation, we can have a robust culture of free speech online without shielding from liability platforms designed to host illegality or who deliberately host illegal content
What to Do About the Emerging Threat of Censorship Creep on the Internet
No full textPopular tech companies — Google, Facebook, Twitter, and others — have strongly protected free speech online, a policy widely associated with the legal norms of the United States. American tech companies, however, operate globally, and their platforms are subject to regulation by the European Union, whose member states offer less protection to expression than does the United States. European regulators are pressuring tech companies to control and suppress extreme speech. The regulators’ clear warning is that, if the companies do not comply “voluntarily,” they will face harsher laws and potential liability. This regulatory effort runs the risk of censorship creep, whereby a wide array of protected speech, including political criticism and newsworthy content, may end up being removed from online platforms on a global scale. European regulators cannot be expected to pull back and adopt U.S. norms for speech. The tech company leaders may, however, reduce the risks to free speech by insisting on clear definitions of “hate speech,” holding regulators accountable before the public, fostering detailed transparency of government actions, and appointing ombudsmen
Recognizing Women\u27s Rights at Work: Health and Women Workers in Global Supply Chains
Get PDFThe Guiding Principles mandate that businesses respect the human fights enshrined in the International Bill of Human Rights and in the International Labour Organization (ILO)\u27s Declaration on Fundamental Principles and Rights at Work. Due diligence processes and risk impact assessments are the main recommended means for ensuring compliance with companies\u27 commitments to respect international human fights. Because OSH as a conceptual framework and regulatory order is not sufficient to identify the risk of health fights violations to women workers, we argue companies should not anchor their due diligence and risk assessment in OSH conventions and settle for a check-the-box solution where worker health is at risk. Rather, a more robust appreciation of the substantive content of the human fight to health on the part of business enterprises could result in better health outcomes for all workers and reduce the risk of fights abuses in the workplace. We re-examine the fight to health of women workers and explore the reasons for aligning OSH with human fights health standards relevant to global business enterprises.
We use a gender lens to bring the lack of alignment between standard approaches to occupational safety and health and international human fights standards into sharper focus.6 Looking through a gender lens we find a more consistent, and ultimately more business -friendly, approach to improving the health of women workers -and, thereby, all workers could benefit from aligning OSH policy priorities with new principles designed to incorporate respect for human fights into business practices. In Part II, we give an overview of the impact of globalization on the health of women workers and outline the current application of occupational health standards. In Part III, we analyze the fight to health for women under international law as well as the non-human fights mechanisms that inform the role of the workplace in ensuring worker health. In Part IV, we review the Guiding Principles with particular attention devoted to the due diligence responsibilities of corporations as relevant to the health of women workers. Finally, we conclude with a preliminary set of recommendations for aligning OSH with general health fights to inform the development of due diligence and human fights impact assessment processes consistent with the UNGPs
The Future of Fast Food Governance
Get PDFThe Fast Food Forward movement has swelled into one of the largest protests by low‐wage workers in U.S. history, animating efforts at all levels of government to raise and enforce workplace standards. One such strategy is to hold fast food franchisors accountable as joint employers of their franchisees’ employees. In what may be a watershed moment, New York Attorney General Eric Schneiderman (NYAG) recently filed suit against Domino’s Pizza, the franchisor, for wage‐and‐hour‐law violations in its franchisees’ stores across New York State.
Fast food store employees report widespread wage‐and‐hour law violations, and the NYAG’s Domino’s lawsuit appears to confirm this trend within one of the largest fast food brands in the United States. The NYAG’s suit is similar to successful nonfranchisor–franchisee wage‐and‐hour litigation, where courts have assigned liability to lead firms because their subcontractors’ employees economically depend on them. But courts presented with similar evidence in the franchisor–franchisee context have been reluctant to consider franchisors to be joint employers.6 What accounts for this difference?
The purpose of this Essay is to provide one answer to this question. This Essay argues that the franchise relationship is often misunderstood by the judiciary as an arms‐length relationship when, in fact, it is frequently characterized by ongoing dependence. This is an important misapprehension because dependence lies at the heart of how courts evaluate franchisor liability under wage‐and‐hour and franchise laws. It leads many courts to assume that the franchise agreement reflects an independent relationship between franchisors and franchisees and to disregard the supervisory controls that franchisors write into franchise agreements as routine quality standards.
The difference in judicial interpretations of the franchise relationship relative to other contracting arrangements suggests that improving fast food franchise store compliance with wage‐and‐hour law requires a reexamination of the franchise relationship. The Essay explores the regulation of franchising under wage‐and‐hour law and franchise law, finding that both legal regimes create perverse incentives for franchisees to violate wage‐and‐hour law. This Essay argues that improving wage‐and‐hour law compliance in franchise stores will require a reconfiguration of the franchise relationship to incentivize franchisor monitoring of franchisee pay practices, notwithstanding the franchisor’s joint‐employer status. franchisor monitoring of franchisee pay practices, notwithstanding the franchisor’s joint‐employer status
Income Taxation and Asset Valuation (II) The Value of Preferential Taxation
Get PDFThe predecessor to this Article explored the properties of an income tax that uses economic depreciation in measuring capital income. This Article investigates some fundamental properties of an income tax that does not. The predecessor illuminated the equivalence between economic depreciation and accrual taxation, and highlighted the insight, due to Paul Samuelson, that either produces asset values that are independent of their holders\u27 marginal rates, even in a system with graduated rates (and even if those rates vary over time). The current Article explores in qualitative terms the value of preferential departures from valuation-neutral taxation
Comment on Brewer: Form and Content in Legal Proof (or Why Everybody Wins - Or at Least Gets a Participation Trophy)
Get PDFIn 1980, I was in a Contracts class taught by the incomparable Arthur Leff. It became very clear very quickly that one student in that class was (apart from Professor Leff) the smartest and most interesting person in the room. That person was Scott Brewer. More than three and a half decades later, when I thought about who I would most like to invite to comment on my book Evidence of the Law: Proving Legal Claims, one name immediately shot into my mind: Scott Brewer. He was, as the saying goes, at the very top of my draft board. He was my Myles Garrett (though hopefully without any ankle injuries).\u2
Searching Places Unknown: Law Enforcement Jurisdiction on the Dark Web
Get PDFThe use of hacking tools by law enforcement to pursue criminal suspects who have anonymized their communications on the dark web presents a looming flashpoint between criminal procedure and international law. Criminal actors who use the dark web (for instance, to commit crimes or to evade authorities) obscure digital footprints left behind with third parties, rendering existing surveillance methods obsolete. In response, law enforcement has implemented hacking techniques that deploy surveillance software over the Internet to directly access and control criminals’ devices. The practical reality of the underlying technologies makes it inevitable that foreign-located computers will be subject to remote “searches” and “seizures.” The result may well be the greatest extraterritorial expansion of enforcement jurisdiction in U.S. law enforcement history.
This Article examines how the government’s use of hacking tools on the dark web profoundly disrupts the legal architecture on which cross-border criminal investigations rest. These overseas cyberoperations raise increasingly difficult questions regarding who may authorize these activities, where they may be deployed, and against whom they may lawfully be executed. The rules of criminal procedure fail to regulate law enforcement hacking because they allow these critical decisions to be made by rank-and-file officials despite potentially disruptive foreign relations implications. This Article outlines a regulatory framework that reallocates decisionmaking to the institutional actors who are best suited to determine U.S. foreign policy and avoids sacrificing law enforcement’s ability to identify and locate criminal suspects who have taken cover on the dark web
Copyright Owners\u27 Putative Interests in Privacy, Reputation, and Control: A Reply to Goold
Get PDFMy own view is that Goold overstates the explanatory role of tort law. But even were that not the case, the courts need to reach some kind of “settled” understanding on these various interests before a cause of action is created or definitively rejected, and that no such consensus on the three matters mentioned yet exists, whether they are viewed as forms of tort or otherwise. Goold’s work may nevertheless be an important step toward reaching closure on these and other open questions in copyright law
Rise of the Digital Regulator
Get PDFThe administrative state is leveraging algorithms to influence individuals’ private decisions. Agencies have begun to write rules to shape for-profit websites such as Expedia and have launched their own online tools such as the Consumer Financial Protection Bureau’s mortgage calculator. These digital intermediaries aim to guide people toward better schools, healthier food, and more savings. But enthusiasm for this regulatory paradigm rests on two questionable assumptions. First, digital intermediaries effectively police consumer markets. Second, they require minimal government involvement. Instead, some for-profit online advisers such as travel websites have become what many mortgage brokers were before the 2008 financial crisis. Although they make buying easier, they can also subtly advance their interests at the expense of those they serve. Publicly run alternatives lack accountability or—like the Affordable Care Act health-insurance exchanges—are massive undertakings. The unpleasant truth is that creating effective digital regulators would require investing heavily in a new oversight regime or sophisticated state machines. Either path would benefit from an interdisciplinary uniform process to modernize administrative, antitrust, commercial, and intellectual property laws. Ideally, a technology meta-agency would then help keep that legal framework updated