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Prosocial Fraud
No full textThis Article identifies the concept of prosocial fraud--that is, fraud motivated by the desire to help others. The current incentive-based legal framework focuses on deterring rational bad actors who must be constrained from acting on their worst impulses. This overlooks a less sinister, but more endemic species of fraud that is not driven by greed or the desire to take advantage of others. Prosocial fraud is induced by prosocial motives and propagated through cooperative norms. This Article argues that prosocial fraud cannot be effectively deterred through increased sanctions because its moral ambiguity lends itself to self-deception and motivated blindness. The presence of a beneficiary other than the self allows individuals to supplant one source of morality (honesty), with another (benevolence), providing a powerful source of rationalization that weakens the deterrent impact of legal sanctions.
After examining the types of motives that typify prosocial fraud, this Article identifies structural and situational factors--definitional ambiguity, incrementalism, and third-party complicity--that increase its prevalence. Given the cognitive and psychological biases at play, this Article suggests that any efforts to curb prosocially motivated fraud focus less on adjusting sanctions and more on exploring alternative mechanisms of ex ante, private enforcement
Baby & Bathwater: Standing in Election Cases After 2020
No full textThe current consensus among commentators is that the flood of cases challenging the 2020 presidential election results was almost completely meritless. This consensus is correct as to the ultimate result, but not as to the courts’ treatment of standing. In their (understandable) zeal to reject sometimes frivolous attempts to overturn a legitimate election and undermine public confidence in our electoral system, many courts were too quick to rule that plaintiffs lacked standing. These rulings resulted in unjustified sweeping rulings that voters were not injured even if their legal votes were diluted by states accepting illegal votes; that campaigns did not share interests with the voters who supported them; and that only state legislatures, and not Electoral College nominees, had standing to sue under the Electors Clause (a relatively untested area). Moreover, many courts confused standing doctrine with the merits. All this threatens to create dangerous precedent which would improperly prevent full consideration of the merits of future meritorious voting rights and election suits.
Getting standing right is particularly important in election cases. Election challenges like these will recur regularly. Because elections ensure democratic health, and because the political process is often not incentivized to fix electoral problems, judicial intervention is particularly necessary. In addition, election cases raise unique standing challenges, because the asserted harms are often diffused. And they present timing problems: sue too far in advance, and courts will reject the alleged harms as speculative; sue later, and courts may decline relief under the Supreme Court’s “Purcell doctrine” cautioning against disrupting electoral rules on the eve of an election. This Article synthesizes the lessons to be derived from the 2020 election cases regarding election case standing, critiques where the courts’ analysis seems incorrect, and proposes general standing rules for voters, candidates, campaigns, Electors, and elected officials
Decreasing Unintentional War: Governance Considerations For Regulating Lethal Autonomous Weapons Systems
No full textWhile the introduction of futuristic technologies will establish new options and precedents for state responses to security scenarios, there are important lessons to be drawn from prior crises. Beginning with a case study of newly sworn-in leaders during their first major foreign policy ‘test,’ this article envisions changes to such security scenarios with reference to the development of policies on Lethal Autonomous Weapons Systems (LAWS). Leadership perceptions and the politics of human versus machine error, or sharing accountability of fault by states, is considered in the context of a detailed thought experiment. The second section of the article identifies enhanced collaborative rules for decreasing the probability of unintentional war at the level of military officers. The final section considers possible avenues to implement restrictions on LAWS in conventional warfare through various arms control models. Through the article’s focus on existing architectures of global governance, readers will be presented with an analysis of the challenges that may confront future political leaders and technical experts in the field of emerging technologies
Reinterpreting The Reinterpretation: Collective Self-Defense As Constitutional Fidelity
No full textAs currently interpreted, Article 9 of the Japanese Constitution requires Japan’s Self-Defense Forces (JSDF) to operate in a purely defensive capacity. Recently, however, the United States has increasingly asked Japan to participate in joint military operations, in which Japanese forces would defend not only themselves, but also their American allies. This raises an important legal question: does Article 9 permit the JSDF engage in this kind of collective self-defense? Former Prime Minister Abe Shinzo believed so. After a government panel of legal experts found that collective self-defense was consistent with Article 9, the Abe administration adopted the panel’s conclusion. However, this “Reinterpretation” of Article 9 has been highly controversial. Japanese scholars of constitutional law are deeply divided on the meaning of Article 9 and the legality of the Reinterpretation. While some maintain that Article 9 prohibits collective self-defense, others have argued that Article 9 either permits it, or is superseded by Japan’s treaty obligations to the United States. However, until now, these arguments have not been reflected in the non-Japanese literature. Accordingly, English-language scholarship has often assumed with little discussion that the Reinterpretation is inconsistent with Article 9, before proceeding to analyze the Reinterpretation as a failed attempt to informally amend the Article 9 without the requisite democratic support. This essay re-frames the debate. The Reinterpretation is not an attempt to amend Article 9, but an attempt to understand it. Accordingly, its legitimacy is not derived from the magnitude of its popular support, but the strength of its legal justifications
A Formulaic Recitation Will Not Do: Why the Federal Rules Demand More Detail in Criminal Pleading
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Committee of Unsecured Creditors\u27 Motion Authorizing Examinations and Production of Documents
No full textMotion of the Official Committee of Unsecured Creditors for entry of an order pursuant to Bankruptcy Rule 2004 authorizing examinations and production of documents, filed February 12, 2021
