Global Health Research Center of Central Asia
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Constitutional Moral Hazard and Campus Speech
Get PDFOne underappreciated cost of constitutional rights enforcement is moral hazard. In economics, moral hazard refers to the increased propensity of insured individuals to engage in costly behavior. This Essay concerns what I call “constitutional moral hazard,” defined as the use of constitutional rights (or their conspicuous absence) to shield potentially destructive behavior from moral or pragmatic assessment. What I have in mind here is not simply the risk that people will make poor decisions when they have a right to do so, but that people may, at times, make poor decisions because they have a right. Moral hazard is not about how individuals behave in general but on the margins. It concerns the incentive effect of holding security against worst-case scenarios.
Thus, imagine a D.C. parent who, inspired by the Supreme Court’s decision in District of Columbia v. Heller, keeps a loaded handgun within reach of a toddler. A significant risk of injury to the child is present whether or not handgun possession is constitutionally protected. But, on the margins, the risky behavior may be more likely to occur if prosecution for illegal possession is off the table. Or consider a homeowner who refuses to sell his or her home for an economic development project at a price that he or she would accept in the absence of property protections under the Takings Clause
Annual Review of Developments Under SEQRA
Get PDFThe courts decided 46 cases under the State Environmental Quality Review Act (SEQRA) in 2018. However, the most important action under SEQRA was in the Legislature, followed by the state Department of Environmental Conservation (DEC)
Columbia Law Professor Comments on Federal Court Conviction of Four Migrants\u27 Rights Activists for Leaving Water and Food in the Arizona Desert
Get PDFOn Friday afternoon, January 18, 2019, Magistrate Judge Bernardo Velasco found four activists with the group No More Deaths/No Más Muertes guilty of violating federal law for leaving water and food in the desert for migrants in the Cabrieza Pietra National Wildlife Area, a federally controlled refuge in the Southern Arizona desert where human remains of migrants are frequently found. The case signals the Trump administration’s resolve to prosecute migrants’ rights activists as aggressively as possible, even in relatively minor cases such as this one where the activists were charged with what amounts to “littering.
Investigating Potentially Unlawful Death under International Law: The 2016 Minnesota Protocol
Get PDFAcross every region of the world, states are daily alleged to have committed or to have failed to prevent unlawful killings. From police shootings of members of ethnic minorities, to the use of lethal force against protestors during peacetime, to indiscriminate air strikes and targeted attacks on civilians during armed conflict, one of the most pressing concerns is ensuring that an effective investigation of the killing is conducted. Without an investigation, accountability is typically impossible, and families and communities must endure the pain of loss without knowing the truth, much less seeing justice. Investigations are an essential component of the right to life and are necessary to prevent future violations.
International treaties protect the universally binding right to life and permit killing only in narrow, strictly defined circumstances. When a life has been lost and it is uncertain whether this occurred in accordance with the law, the death must be investigated. But treaties do not set out the specific standards or processes for proper investigations of alleged violations. Instead, agreed international legal standards have developed over time. States, international human rights bodies, and practitioners have relied on supplemental international instruments to set out the agreed substantive and procedural legal elements of the right to life and to advance the best investigation practice
Competition Enforcement, Trade and Global Governance: A Few Comments
Get PDFThe debate on international antitrust has come from two perspectives. On the one hand, the trade community has emphasised the interface between trade policy and competition (policy and) enforcement. This interface, which was recognised from the outset of multilateral efforts to liberalise trade in what would become the GATT and eventually the WTO, focuses on the prospect that trade liberalisation through border instruments should not be undone by restrictive business practices (RBPs), placing a particular responsibility in this respect on competition enforcement. On the other hand, the antitrust community has emphasised the risk of inefficient enforcement when several jurisdictions can rule on the same case and thereby the need for coordination of enforcement across jurisdictions.
The chapter makes two simple observations. First, from the antitrust perspective, we find that both the deviation from the objective of the protection of consumer welfare and the scope for capture in enforcement are important root causes of conflicts across jurisdictions. This arises because, unlike what happens with other interests, the protection of consumer interests does not involve any direct external effects across jurisdictions. Some, admittedly casual, observations confirm that strategic enforcement in favour of (domestic) business interest remains a concern, so that the soft convergence across jurisdictions on objectives and institution design that has been achieved may not suffice. An international discipline on the enforcement of domestic rules may be desirable, possibly in the context of bilateral free trade agreements (FTAs).
Second, from the trade perspective, we observe that if the protection of market access commitments can in principle be achieved by non-violation complaints (NVCs), such complaints would trigger a competition enforcement that is not focused on the interest of the domestic constituencies that competition law is meant to protect. This mechanism may thus prove ineffective unless supported by an international commitment. In addition, we find that when trade reflects the organisation of production along the vertical chain, NVCs involve the formulation of counterfactuals that is more challenging
Why Do Auditors Fail? What Might Work? What Won\u27t?
Get PDFAuditing failures and scandals have become commonplace. In response, reformers (including the Kingman Review in the U.K. and a recent report of the U.K.’s Competition and Market Authority) have proposed a variety of remedies, including prophylactic bans on auditors providing consulting services to their clients in the belief that this will minimize the conflicts of interest that produce auditing failures. Although useful, such reforms are already in place to a considerable degree and may have reached the point of diminishing returns. Moreover, this strategy does not address the deeper problem that clients (or their managements) may not want aggressive auditing, but rather prefer a deferential and perfunctory audit. If so, auditors will realize that they are marketing a ‘commodity’ service and cannot successfully compete based on their quality of services. Rationally, they would respond to such a market by seeking to adopt a cost-minimization strategy, competing by reducing the cost of their services and not investing in new technology or higher-priced personnel.
What could change this pattern? Gatekeepers, including auditors, serve investors, but are hired by corporate management. To induce gatekeepers to better serve investors, one needs to reduce the ‘agency costs’ surrounding this relationship by making gatekeepers more accountable to investors. This might be accomplished through litigation (as happens to some degree in the U.S.), but the U.K. and Europe have rules that discourage collective litigation. Thus, a more feasible approach would be to give investors greater ability to select and remove the auditor. This paper proposes a two part strategy to this end: (1) public ‘grading’ of the auditor by the audit regulator in an easily comparable fashion (and with a mandatory grading curve), and (2) enabling a minority of the shareholders (hypothetically, 10%) to propose a replacement auditor for a shareholder vote. It further argues that both activist shareholders and diversified shareholders might support such a strategy and undertake it under different circumstances. Absent such a focus on agency costs, however, reformers are likely only re-arranging the deck chairs on the Titanic
Embedding Content or Interring Copyright: Does the Internet Need the Server Rule ?
Get PDFThe “server rule” holds that online displays or performances of copyrighted content accomplished through “in-line” or “framing” hyperlinks do not trigger the exclusive rights of public display or performance unless the linker also possesses a copy of the underlying work. As a result, the rule shields a vast array of online activities from claims of direct copyright infringement, effectively exempting those activities from the reach of the Copyright Act. While the server rule has enjoyed relatively consistent adherence since its adoption in 2007, some courts have recently suggested a departure from that precedent, noting the doctrinal and statutory inconsistencies underlying it.
Authors and copyright owners have long lamented that the server rule’s immunization of certain online activities eviscerates their ability to control how their works are disseminated on the Internet. But many Internet users and commercial actors have incorporated the rule’s liability shield into their expectations about how the Internet does (and should) function. Accordingly, while authors and copyright owners foresee improved prospects for remuneration, many commentators and advocacy groups have expressed concerns regarding the recent judicial doubt about the validity of the server rule. They contend that, without the server rule, the Internet would cease to function as it does today.
However, these concerns overlook the applicable defenses – in particular, the defenses of safe harbor under § 512 of the Digital Millennium Copyright Act and express license – which, we expect, would take on a more significant role in a postserver rule world. In this Article, we explore the likely effect of the potential reversal of the server rule, taking into account these defenses. We conclude that the principal difference between copyright law with and without the server rule comes down to the author’s ability to obtain the removal of links to infringing content, and to authorize embedding of content from a source to which the public had lawful access. Moreover, while the reversal of the server rule may interrupt a handful of online services that rely entirely on the unauthorized appropriation of copyrighted works, most online practices would likely continue unaltered in the post-server rule world
Burning Down the House? The Appellate Body in the Centre of the WTO Crisis
Get PDFIn December 2019 the WTO Appellate Body (AB) will cease to operate unless the United States stops blocking new appointments. The US argues the AB has exceeded its mandate and has indicated it wants to ensure that the AB performs the role originally assigned to it in 1995. This paper discusses the Uruguay round negotiating history with the view to establish what “going back to 1995” entails. It concludes that this should not be difficult assuming a willingness of the WTO membership to seriously consider the US concerns and acceptance by the US of a commitment by the membership to ensure that the AB operates consistently with its 1995 mandate
Simplified Courts Can\u27t Solve Inequality
Get PDFState civil courts struggle to handle the volume of cases before them. Litigants in these courts, most of whom are unrepresented, struggle to navigate the courts to solve their problems. This access-to-justice crisis has led to a range of reform efforts and solutions. One type of reform, court simplification, strives to reduce the complexity of procedures and information used by courts to help unrepresented litigants navigate the judicial system. These reforms mitigate but do not solve the symptoms of the larger underlying problem: state civil courts are struggling because they have been stuck with legal cases that arise from the legislative and executive branches\u27 failure to provide a social safety net in the face of rising inequality. The legal profession and judiciary must step back to question whether the courts should be the branch of government responsible for addressing socioeconomic needs on a case-by-case basis
Reputational and Integrity Due Diligence on Investors
Get PDFBefore deciding to invest, companies and investors will perform background research on the uncertainties and risks associated with the proposed investment. For natural resource projects, there are risks around geology, market and price developments, construction delays, operations, regulatory changes, political disruptions, and reputational issues. Feasibility studies and due diligence assessments aim to better understand these risks, reduce uncertainty where possible and be better prepared to manage them.
Governments too should understand the risks that are associated with the proposed investments and get to know the investors before entering into negotiations or signing contracts. This is particularly important for long-term agreements or ‘high stake’ investments such as natural resource or infrastructure projects, where financial, environmental or social externalities are high. But oftentimes governments do not perform due diligence assessments. The agencies in charge of attracting investment are often judged on the quantity and not the quality of investment, and due diligence can be time-intensive and costly.
In its trainings, CCSI has long advocated for governments to perform due diligence on prospective investors. However, little guidance exists on how governments can go about it. Therefore, CCSI has teamed up with Kroll, a leading global provider of risk solutions that regularly performs Reputational and Integrity Due Diligence (RIDD) on investors, to develop a guide on (1) how to decide when to conduct RIDD, (2) how to conduct basic checks, and (3) when and how to engage with third parties to conduct a RIDD.
This is part of a broader ongoing project of CCSI that seeks to support host governments and civil society to better assess the quality of investments and underlying investors. For more information and tools available to support governments with assessing, planning, negotiating, implementing, and monitoring large-scale investments please visit our Negotiation Support Portal