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“Kindred to Treason”: Conspiracy Laws in the United States
No full textThis chapter challenges the presumed movement of time encompassed in a major organizing theme of recent historiography: state-building. The very term incorporates an implicit idea of the time of political economy within its contours — imagining that the history of the modern state moves forward toward modern social welfare and disciplinary state bureaucracy. The chapter offers a countervailing view in its interpretation of the early history of treason and conspiracy prosecutions in the aftermath of putative armed rebellions against the United States. In the early years of the republic, it argues, national political leaders struggled with the question of how to enforce federal authority in an era with little enforcement bureaucracy, and in which widespread flouting of federal law called into question the power of the national government. The chapter traces the evolution of treason prosecutions, and later the creation of a general federal crime of conspiracy, finally achieved in the context of the Civil War and Reconstruction, as a response to this problem. By the early twentieth century, it argues, these developments had become so uncontroversial that few questioned the existence of conspiracy as a federal crime, and the long history of its contested creation was now forgotten. The development of conspiracy as a federal crime, it argues, should be seen as an episode of state-building, achieved without the extension of bureaucratic apparatus that might attach to such a project. Indeed, it is implicit in this account that the contours of the familiar strong state/weak state debate should be completely rethought, as a state might be “strong” and “weak” along various dimensions
Opening Dialogue
Get PDFTo set the stage for the excellent essays that make up this volume on the future of free speech, let’s begin where we often do when thinking together about the First Amendment: with some basic facts and fundamental observations about the constitutional command that “Congress shall make no law ... abridging the freedom of speech, or of the press.”
Of course, in the United States, “free speech” is not only part of the constitutional Bill of Rights; it is also a cultural and social norm by which we choose to live. Several of the essays in this volume therefore take note of how the meaning and health of “free speech” depend both on judicial interpretations of the First Amendment and on how all citizens and institutions interpret and abide by the general principle. Still, in our highly legalized, and constitutionalized, national culture, it is only natural that the interpretation of the constitutional right drives both the public and the private spheres in which “free speech” operates
Questionable Arbitrator Habits
Get PDFInternational arbitrators do some things in conducting arbitrations, that tend to go without saying, but that I struggle to accept without question. I speak not of major procedural missteps that run afoul of principles of due process or of procedural “best practices” codified in soft law instruments like the IBA Rules on the Taking of Evidence. Rather, I speak of some of the smaller, uncodified procedural behaviors — procedural habits, I call them — that international arbitrators adopt within the confines, and between the interstices, of those codified due process and soft law “best practice” parameters. I speak of widely followed arbitrator habits such as not revealing their preliminary views of the merits of the case prior to award, reserving arbitrator questions of witnesses and counsel at hearing until after counsels’ examination of witnesses or argument is completed, and deferring any arbitrator deliberations of the merits until after final hearing. I speak as a former counsel in international arbitrations for three decades, and as an international arbitrator for the past two decades.
Reasonable international arbitrators can reasonably disagree about these procedural habits, none of which ordinarily implicate concerns of due process. There are no right or wrong habits. Typically, in any individual case, it is the chair of a three-member arbitral tribunal who prescribes how he prefers to conduct the proceedings, and the party-appointed arbitrators defer to the chair. Thus, much depends on the particular chair’s procedural habits and preferences. But in my experience there is widespread adherence to the procedural habits that I question here. My principal objective in voicing my reservations about these procedural habits is not to condemn them as wrong, but rather to bring them to light so as to invite more serious scrutiny and debate.
I address below, first, questionable arbitrator habits common to all arbitrators and arbitrations, and second, questionable arbitrator habits specific to chairs and party-appointed arbitrators in three-member arbitral tribunals
Yes, Trump’s PACs Really Can Pay His Legal Fees
Get PDFCampaign finance data released at the end of January 2024 revealed that Save America, a political action committee founded and controlled by former President Donald Trump, spent more than US10 million in additional legal fees for Trump in 2023.
Though I have spent much of my career as a scholar of campaign finance law, I’m not certain whether that use of campaign donations is legal under federal election law. It might be; it might not be. But if it’s not, I deem it unlikely that the Federal Election Commission, which enforces campaign finance laws, would take any action
Transaction-Specific Tax Reform in Three Steps: The Case of Constructive Ownership
Get PDFSimilar investments are often taxed differently, rendering our system less efficient and fair. In principle, fundamental reforms could solve this problem, but they face familiar obstacles. So instead of major surgery, Congress usually responds with a Band-Aid, denying favorable treatment to some transactions, while preserving it for others. These loophole-plugging rules have become a staple of tax reform in recent years. But unfortunately, they often are ineffective or even counterproductive. How can Congress do better? As a case study, we analyze Section 1260, which targets a tax-advantaged way to invest in hedge funds. This analysis is especially timely because a multi-billion dollar litigation is pending about this rule.
This Article proposes a three-step approach. First, when faced with a new type of tax planning, policymakers should decide whether a response is really necessary. How harmful is the transaction? How feasible is it to target this transaction without also burdening “good” transactions, which don’t involve the same abuse? This first phase determines what we call “the normative presumption” about the transaction.
Second, Congress should define which transactions are potentially problematic. An “initial filter” should exempt transactions that clearly don’t pose the relevant concern.
Third, once a transaction is deemed to be potentially problematic, a sophisticated test is needed to check whether it actually is. Admittedly, a sophisticated test is costly to administer. This is why initial filters are needed to limit how often it is used.
Along with proposing this three-part framework, this Article offers a novel critique of a sophisticated test the government has begun using: a “delta” test, which measures how closely investments track each other. Although delta is often considered the gold standard, we show how easy it is to manipulate. The trick is to add contingencies (e.g., so the investment terminates when the price reaches a specified level). To head off this gaming, we recommend an alternative test that focuses on value instead of on changes in value–and, more generally, on enduring features instead of temporary quirks
Harms from Concentrated Industries: A Primer
Get PDFMarket concentration within sectors and across global value chains has increased in recent years, leading to new scholarship on the benefits and harms of concentrated industries. The macroeconomic effects of market concentration, and its effects on stakeholders like workers, consumers, and citizens, will significantly impact the achievement of the SDGs. Read CCSI\u27s primer on the Harms from Concentrated Industries here
The Administrative State, Financial Regulation, and the Case for Commissions
Get PDFAdministrative law is under attack, with the Supreme Court reviving, expanding, and creating doctrines that limit the authority and autonomy wielded by regulatory agencies. This anti-administrative turn is particularly alarming for financial regulation, which already faces enormous challenges stemming from the dynamism of modern finance, its growing complexity, and fundamental contestability. Yet that does not mean that defending the current regime is the optimal response. The complexity and dynamism of modern finance also undercut the efficacy of established administrative procedures. And the panoply of financial regulators with unclear and overlapping jurisdictional bounds only adds to the challenge. Both these procedural and structural challenges put greater pressure on Congress to act, but partisanship and other challenges are making such action more challenging than ever.
This Article tackles the question of how to enhance the willingness and capacity of even a reluctant Congress to engage in the legislation and oversight that the current judiciary is demanding. It argues that having Congress pre-commit to convening congressional commissions every ten years to survey the changing landscape, identify emerging threats, and propose reforms when appropriate could go a long way in enhancing Congress’s capacity to act and serve as a prompt to such action. Like administrative agencies, commissions can be used to harness the specialized insights of experts on a range of technocratic policy issues. They can also incorporate more diverse and independent perspectives on these issues, connect them to broader questions about the role of finance in society, and help galvanize the public and political will needed to bring about regulatory reform. Moreover, unlike administrative agencies, commissions can provide ex ante guidance that informs the political process, enabling a different and complementary way to combine public participation, expert analysis, and congressional oversight. Looking to the historical use of commissions in finance and other domains as a guide, the Article shows how institutionalizing decennial commissions can help enhance both the quality and legitimacy of financial regulation. Commissions are no magic bullet, but they could constitute a useful, if modest, step in efforts to enhance the institutional design of Congress within the constitutionally prescribed parameters
Nudging Improvements to the Family Regulation System
Get PDFThe Restatement of Children and the Law features a strong endorsement of parents’ rights to the care, custody, and control of their children because parents’ rights are generally good for children. Building on that foundation, the Restatement’s sections on child neglect and abuse law would resolve several jurisdictional splits in favor of greater protections for family integrity, thus protecting more families against the harms that come from state intervention, especially state separation of parents from children.
But a close read of the Restatement shows that it only goes so far. It is not likely to significantly reduce the wide variation in practice by jurisdiction, nor will it satisfy calls for a more fundamental transformation of the legal system. For instance, the Restatement requires consideration of the harm of removing children from their parents, without explaining how to weigh that against possible harms of remaining at home. It provides that poverty alone does not amount to neglect, without providing much guidance on the difficult question of how to implement that principle. The Restatement creates a clear preference for placement with relatives over strangers, without clarifying what suffices to overcome those preferences. It recognizes a right of parents and children separated by the state to visit with “frequency,” without defining that term.
This analysis is not a criticism of the Restatement — by codifying existing law, it does what the Restatement should do. Rather, this analysis highlights how this Restatement can contribute to child neglect and abuse law in the present context. It can help nudge the law in a modestly improved direction and highlight areas that require more transformative legal changes
(How) Can Litigation Advance Multiracial Democracy?
Get PDFCan rights litigation meaningfully advance social change in this moment? Many progressive or social justice legal scholars, lawyers, and advocates would argue “no.” Constitutional decisions issued by the U.S. Supreme Court thwart the aims of progressive social movements. Further, contemporary social movements often decenter courts as a primary domain of social change. In addition, a new wave of legal commentary urges progressives to de-emphasize courts and constitutionalism, not simply tactically but as a matter of democratic survival.
This Essay considers the continuing role of rights litigation, using the litigation over race-conscious affirmative action as an illustration. Courts are a key location in which rights and social policies are contested and elaborated upon, even when progressive social justice groups may not choose the domain. Given this reality, there is value in determining what role courts can and should still play, while being attentive to movement lawyering and democratic critiques of litigation reliance. In Part I, this Essay begins by examining the current skeptical commentary on the role of courts and constitutionalism in progressive social justice advocacy. Part II considers the example of current affirmative action litigation, which illustrates the challenges that progressive racial justice movements face in advancing their conception of equal protection from a defensive litigation posture, as well as the profound stakes of such litigation. Part III sketches potential avenues for pursuing litigation that engage social movements and fill in litigation’s potential democratic deficits
Shocking Financed Emissions: The Effect of Economic Volatility on the Portfolio Footprinting of Financial Institutions
Get PDFMany financial institutions are now calculating and disclosing their financed emissions, a class of metrics enabling these institutions to calculate the greenhouse gas (GHG) emissions associated with investment and lending activities. These institutions have widely adopted the metric to estimate exposure to climate-related financial risk associated with GHG-emitting activities and to provide shareholders and investors a picture of how their financial activity impacts global climate change. Financed emissions metrics, despite widespread adoption, face two key methodological challenges: lack of comparability of outputs within and between portfolios, and vulnerability of calculations to portfolio volatility. Markets are naturally volatile, but the economic transformation caused by the transition to net-zero GHGs is also likely to create economic volatility, requiring metrics to anticipate this likelihood and take it into account. The paper demonstrates the impact of volatility on the financed emissions of a modeled portfolio comprising five high-emissions industries. The paper concludes that using market value metrics, like enterprise value including cash, to calculate financed emissions exacerbates the effect of volatility on the metric. Using book value metrics to calculate financed emissions across the whole portfolio may potentially reduce – but not eliminate – the impact of volatility while maintaining comparability