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Swapping In: Why the Ninth Circuit\u27s Statutory Interpretations Best Protect American Investors From Overseas Violations of U.S. Securities-Trading Laws
No full textThe U.S. federal Commodity Exchange Act (“CEA”) and Securities Exchange Act of 1934 (“SEA”) regulate the trading of commodities and securities, respectively. While the Acts outlaw market manipulation and financial fraud, courts have struggled in determining whether they have acquired jurisdiction over these Acts. Namely, circuits disagree on whether the location of misconduct itself or the misconduct’s impact on investors should guide jurisdiction.
The U.S. Supreme Court has implored courts to focus on fraud’s impacts and to create clean and easy-to-use tests to determine jurisdiction. While the Ninth Circuit has adopted an “irrevocable liability” test that focuses on where a trade is executed, the Second Circuit has adopted an “extraterritoriality” test that considers the overall foreignness of a claim. The First and Third Circuits follow the “irrevocable liability” test, and New York, the nation’s financial core, follows the Second Circuit’s “extraterritoriality” test.
By scrutinizing legislative history and congressional hearings, the central meaning of the Supreme Court’s holding in Morrison v. National Australia Bank, the workability of Stoyas v. Toshiba Corp., and agency powers to interpret the Acts, this Comment will argue that other circuits, and even the Supreme Court, should follow the Ninth Circuit’s “irrevocable liability” test approach
A Proposal for One “Super” Independent Accountability Mechanism
Get PDFThis essay will discuss how the MDBs- for example, the World Bank Group, the African, Asian, and Inter-American Development Banks, and more recently the European Bank for Reconstruction and Development, Asian Infrastructure Investment Bank, and the New Development Bank – are dealing with the issue of accountability. It will argue that, although the MDBs have been leaders in promoting international organizational accountability, their mechanisms of accountability are not keeping up with the evolution in their operations. In the interests of promoting new and creative thinking about these issues, it will also make an ambitious proposal for how the MDBs jointly can more effectively meet the accountability challenge that they face while also respecting the sovereignty of their member states and protecting an appropriate level of immunity for the MDB
The Inadequacy of Perpetuating Vestiges of Segregation in K-12 Curriculum: The Justiciability of Reviewing Duties to Adequacy in Florida\u27s Education Clause
Get PDFAlthough the Supreme Court declared segregation the most abusive affront to education and ruled to eliminate vestiges of segregation “root and branch,” those same roots have grown unchecked to remain prominent today. One of the undercurrents of state-sponsored discrimination that has escaped desegregation remedies is the skewed, whitewashed curriculum that permeated K-12 classrooms in Jim Crow America. More troubling, is that those vestiges of an inadequately biased curriculum are still slithering in students’ courses today. Although student movements and education reformists have attempted to counter skewed curricula by supplementing them with separate ethnic studies courses, states like Florida recently passed legislation restricting these programs because of a misplaced, satanic-panic-like fear of Critical Race Theory. Florida Governor Ron Desantis’ efforts to pass compounding legislation that restrict education curriculum are evidence of an ongoing cultural war in which classrooms have become the battlefield, and its students have become the collateral. If one were to challenge curriculum regulations that perpetuate hallmarks of segregation with the state’s education provision, Florida courts would refuse to review it because to the Florida Supreme Court, reviewing standards in Florida’s education clause is nonjusticiable. Without judicial recourse, not only does the state constitution fail to serve its people, but it also eviscerates an avenue the Florida citizenry can use to address the covert yet pervasive influence of racial discrimination in the K-12 public school curriculum. This Comment argues that Florida’s education clause is not only justiciable but also charges the state with an affirmative duty to provide an adequate education to its students, and a racially biased curriculum violates that duty
Diplomatic Practices: Activating the Crime of Aggression
Get PDFAt midnight on Friday, December 15, 2017, a century of multilateral negotiations over the definition and jurisdictional reach of the crime of aggression—leadership responsibility for aggressive war—was on the brink of collapse. Almost every controversial drafting issue had been negotiated and resolved, and International Criminal Court (ICC or the Court) States Parties were gathered at the United Nations (U.N.) in New York to activate ICC jurisdiction over the “supreme international crime.” According to aggression scholar Annegret Hartig, “activation was expected to be comparable to a mere turning on of lights.” Just two states, the U.K. and France, were blocking the final resolution unless the gathering deleted boilerplate language reaffirming “the judicial independence of the judges of the Court.
Cultural Conquest: Russia\u27s Strategic Assault on Ukrainian Heritage as Both a Catalyst for and a Casualty of Conflict
Get PDFVladimir Putin and his government have disseminated fabricated claims about Ukraine’s history, language, and sovereignty as a rationalization for the 2022 invasion of Ukraine. Not only has the war resulted in grave human loss, but it has also caused widespread destruction throughout Ukraine. Nongovernmental organizations, foreign governments, academics, and Ukrainian citizens have collected robust evidence that Russian forces are purposefully targeting repositories of Ukrainian identity. The intentional destruction of this protected property is considered a war crime under the Rome Statute. Following the International Criminal Court’s (“ICC”) first successful prosecution for the destruction of protected property in 2016, there has been a resurgence in the desire to protect cultural property internationally, regionally, and locally. Moreover, news reports, videos, and photographs of the widespread damage in Ukraine have put the world on notice to Russia’s crimes. Considering the current global climate, the ICC has the best chance of success by prosecuting Russian officials for the war crime of destroying protected property
Adding A Data Disclosure Requirement to the FAA: An Overdue Reform
Get PDFArtificial intelligence (AI) and predictive analytics are transforming almost every sector of society. The field of dispute resolution is no exception to this trend. Lawyers in emerging disputes are hungry for data about arbitrators and judges, prior decisions, similar disputes, and anything else they can get their hands on
Section 4 -- Jury, Trial: A Misnomer In the FAA
Get PDFThe purpose of the Federal Arbitration Act (FAA), according to the Supreme Court, was not merely to reverse judicial hostility towards arbitration by placing agreements to arbitrate on the same footing as other contracts but to actively promote the use of arbitration on a national scale. It is not surprising then that most provisions of the FAA envision limited court intervention into the arbitration process
How Pretrial Detention Deprives a Child’s Access to Education: The Convention on the Rights of the Child and the Juvenile Justice Reform Act
Get PDFAlthough the United States (“U.S.”) has not ratified the Convention on the Rights of the Child, which specifically outlines the rights of juvenile defendants, the Supreme Court’s interpretation of the Fifth and Fourteenth Amendments provides implicit rights for children accused of criminal acts. In 1967, the Supreme Court decided In re Gault, definitively establishing that the Due Process Clause of the Fourteenth Amendment applied to juvenile defendants. The Supreme Court has also stated that children should be treated differently than adults, outlining different sentencing requirements for crimes committed while a person is under the age of eighteen
Prologue
Get PDFWe are pleased to write this prologue for the special issue of the American University International Law Review featuring the winning papers from the 2024 Human Rights Essay Award, sponsored by the Academy on Human Rights and Humanitarian Law of American University Washington College of Law
Esa Persona No Soy Yo : La Inteligencia Artificial Como Un Nuevo Instrumento De Violencia
Get PDFEn 1943, cuando se inventó la primera computadora, se especularon muchísimas teorías, positivas y negativas, sobre cómo esta tecnología afectaría las relaciones humanas. Décadas después, el desarrollo de toda una nueva gama de productos y servicios creó un nuevo espacio que trajo consigo un infinito número de escenarios que lentamente se han regularizado