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Human Rights in Texas: Analyzing Operation Lone Star Through a Human Rights Framework
Get PDFIn 2021, Texas Governor Greg Abbott launched Operation Lone Star (OLS) under the guise of border security. For over three years, OLS has threatened the lives of migrants and U.S. citizens alike. While advocates have primarily challenged OLS under U.S. state and federal law, this Note examines arguments based on the U.S.\u27s international treaty obligations, particularly emphasizing the importance of enforcing international mechanisms of accountability. This Note analyzes OLS under three international law treaties the U.S. has ratified: the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, and the Convention Against Torture. This Note then evaluates the international mechanisms through which these treaties can be enforced in the U.S.: the Committee on the Elimination of Racial Discrimination Committee, the Human Rights Committee, and the Committee Against Torture. By understanding the extent to which OLS violates minimum human rights standards under international law, advocates can bolster their efforts to end OLS and protect migrants and U.S. citizens from future violations of basic human rights
Economic Security and the Separation of Powers
Get PDFThe U.S. Constitution grants Congress the power “[t]o regulate Commerce with foreign Nations,” but today the exercise of the foreign commerce power resides primarily with the executive branch. That transfer of control is partly the result of significant delegations of responsibility for managing foreign commerce from Congress to the executive. It is also, however, the result of the securitization of foreign commerce. The executive branch asserts that foreign commerce issues fall under its constitutional powers over foreign affairs, and, thus, that it enjoys authority over foreign commerce that exceeds the scope of congressional delegations.
This Article makes three contributions. First, we analyze the development of a trade administrative state charged with managing two sets of broad delegations: to liberalize trade, on the one hand, and to restrict it in the name of “economic security” when the executive deems necessary. Second, we document the way in which the executive branch in recent presidential administrations of both parties has defended those administrations’ trade policies in court by arguing that the president’s independent constitutional powers over (noncommercial) foreign affairs give him license to exercise power over commerce beyond that delegated by Congress, or that congressional delegations should be construed in his favor. The courts, for their part, have often accepted these claims either directly or indirectly.
Third, we propose three statutory reforms that Congress could pass to restore balance to the branches’ regulation of foreign commerce: (1) Congress should sunset the president’s imposition of tariffs or other trade restrictions pursuant to economic security statutes after 90 or 180 days without the possibility of renewal unless Congress acts; (2) Congress should prohibit the executive branch from relying on any international agreement as the legal basis under which any good or service is imported into the United States, exported from the United States, or regulated while in the United States, unless Congress has either explicitly authorized the agreement in advance or approved it after its conclusion; and (3) Congress should eliminate the Federal Circuit’s exclusive jurisdiction over appeals in most trade cases
Possible: How We Survive (And Thrive) in an Age of Conflict: Lessons from a Lifetime of Negotiations
No full textConflict is increasing everywhere, threatening everything we hold dear—from our families to our democracy, from our workplaces to our world. In nearly every area of society, we are fighting more and collaborating less, especially over crucial problems that demand solutions.
With this groundbreaking book, bestselling author and international negotiator William Ury shares a new “path to possible”—time-tested practices that will help readers unlock their power to constructively engage and transform conflict. Part memoir, part manual, part manifesto, Possible offers stories and sage advice from Ury’s nearly 50 years of experience on the front lines of some of the world’s toughest conflicts.
One of the world’s top experts in the field, Ury has worked on conflicts ranging from boardroom battles to labor strikes, from the US partisan divide to family feuds, from wars in the Middle East, Colombia and Ukraine to helping the US and USSR avoid nuclear disaster. Now, in Possible, he helps us tackle the seemingly intransigent problems facing us.
In Possible, Ury argues conflict is natural. In fact, we need more conflict, not less—if we are to grow, change, evolve and solve our problems creatively. While we may not be able to end conflict, we can transform it—unleashing new, unexpected possibilities.
Successfully tested at Harvard University with almost a thousand participants from business, government, academia, and the nonprofit sector, Ury’s “Path to Possible” proved so valuable that Harvard’s Program on Negotiation selected it as its inaugural online daylong in April 2022.
Possible introduces Ury’s methods and makes them available for everyone. Combining accessible frameworks and powerful storytelling and offering dozens of examples, it is an essential guide for anyone looking to break through the toughest conflicts—in their workplace, family, community or the world.https://scholarship.law.duke.edu/justin_miller_awards_books/1000/thumbnail.jp
Corpus Linguistics and the Original Public Meaning of the Sixteenth Amendment
Get PDFMoore v. United States raises the question whether unrealized gains, such as an increase in property value or a stock portfolio, constitute “incomes, from whatever source derived” under the original meaning of the Sixteenth Amendment. Moore is widely viewed as the most important tax case to reach the United States Supreme Court in decades. It is also an opportunity for the Court to refine its theory and method of finding original meaning.
We focus here on the original public meaning of the Sixteenth Amendment—the ordinary, common meaning attributed to its text by the general public in 1913. So far, the parties and amici have relied on contemporaneous dictionaries to argue over such meaning. But the cited dictionaries do not establish the ordinary meaning of “incomes, from whatever source derived”; instead, they highlight a key ambiguity in the very terms of the definitions presented.
This article fills important gaps in the original public meaning analysis in Moore. More broadly, it also charts a path for refining the theory and methodology of the originalist inquiry more generally. At the theoretical level, it introduces principles of the philosophy of language and theoretical linguistics that align with—and help refine—strands of the Court’s originalist inquiry. And as to method, it introduces evidence from corpus linguistic analysis to provide a transparent, replicable basis for assessing the ordinary public meaning of the Sixteenth Amendment’s relevant terms.
We use the Corpus of Historical American English (“COHA”) to analyze the ordinary public meaning of the constitutional language at the time of ratification of the Sixteenth Amendment. At the “words-to-meaning” level, we show that “income(s)” was always used in 1900-1912 to refer to realized gains. We also perform a “meaning-to-words” analysis, showing that unrealized gains were always referred to using terms other than “income(s).”
Our corpus linguistic analysis reveals that the original public meaning of “incomes, from whatever source derived” almost certainly only covers realized gains. And it charts a path for greater transparency, objectivity, and replicability than more traditional tools of originalism
ESG and Securities Litigation: A Basic Contradiction
Get PDFCompanies are increasingly expected to publicly report on not only their traditional financial results, but also environmental, social, and governance (“ESG”) issues. Trillions of dollars are being invested with ESG considerations in mind, and boosters urge that ESG investing can address environmental and social impacts that are normally ignored by managers focused on share prices. This raises the question of how companies should be punished if they lie about ESG matters. How should the traditional elements of securities fraud map onto the novel ESG context? Commentators have vigorously debated ESG’s relationship to the materiality element of securities fraud. But the literature has largely overlooked the reliance element. Securities class action plaintiffs normally show reliance using the presumption introduced by the Supreme Court’s decision in Basic Inc. v. Levinson. If a plaintiff can show that a company’s shares trade in an efficient market, share prices are presumed to reflect all publicly available material information about the company. As a result, a material misstatement operates as a “fraud on the market,” and anyone who traded the company’s shares at the market price is presumed to have relied on the misstatement. This presumption makes securities class actions possible by dispensing with the need to prove that every individual plaintiff actually relied on the false information. As ESG disclosures expand, a new wave of litigation powered by Basic is developing.
This Article explores the reliance element of securities fraud and identifies a deep tension between the premises of the ESG movement and the premises of Basic. The advocates who urge corporations to do better on environmental and social matters largely—and justifiably—believe that share prices do not properly reflect corporate performance on those fronts. That belief is difficult to reconcile with Basic’s assumption that material information about a company is reflected in its share price. The Basic presumption could also chill valuable experimentation and voluntary disclosures by companies, and it could absolve institutional investors of the need to actually review and act on ESG disclosures. Counterintuitively, requiring plaintiffs who attack an ESG disclosure to show reliance without using Basic may help advance the goals of the ESG movement, particularly if other enforcers such as the Securities and Exchange Commission step up. These points suggest the need to proactively consider how the Basic presumption should work for ESG misstatements, along with the development of new and creative approaches. By shifting the conversation on ESG disclosures from its current emphasis on materiality to a proper focus on investor reliance and enforcement, this analysis generates fresh and actionable insights
Early Arrival Event: Careers in National Security Law
No full textDuke\u27s Center on Law, Ethics and National Security (LENS) is sponsoring a panel entitled Careers in National Security La
Guardians of Code and Conscience: Exploring Legal and Ethical Frontiers of Generative AI
No full textIntroduction: Maj Gen Charlie Dunlap, USAF (Ret.), LENS Executive Director
Speaker: Brig Gen Linell Letendre, USAF, Dean of the Faculty, U.S. Air Force Academ