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The Collective-Action Constitution
No full textThe primary structural purpose of the United States Constitution is to empower the federal government to solve problems that the states would need to act collectively to solve, and to prevent the states from undermining these solutions or causing such problems from the perspective of the Constitution or Congress. Any faithful account of what the Constitution is for and how it should be interpreted must include this main structural function. The Constitution was established principally because of the widely recognized failures of its predecessor, the Articles of Confederation, to adequately address collective-action problems facing the states, including funding the national government, regulating foreign and interstate commerce, and defending the nation from attack. These challenges are called collective-action problems because the states would need to cooperate or coordinate their behavior-they would need to act collectively, not individually-to solve them, and they would often struggle to do so. In a fundamental sense, the U.S. Constitution is the Collective-Action Constitution, and the sobering problems facing America today-including inadequate access to health care, climate change, the COVID-19 pandemic and future ones, opioid addiction, gun violence, racism and other bigotry, political extremism, unlawful immigration, terrorism, and nuclear proliferation-cannot be adequately dealt with by government if Americans do not recognize this truth. The main goal of the Collective-Action Constitution is not to vindicate a conception of economic efficiency, but to create and maintain political and economic union.https://scholarship.law.duke.edu/faculty_books/1003/thumbnail.jp
Tribes and AI: Possibilities for Tribal Sovereignty
Get PDFArtificial Intelligence (AI) has permeated every facet of modern existence. Governments across the globe are exploring its applications and attempting to establish regulatory frameworks. Numerous scholars have proffered recommendations for governing AI at the local, national, and international levels. However, as is often the case, Indian tribes have been neglected in AI policy discussions. This oversight is significant because the 574 federally recognized tribes are sovereigns with their own judicial, education, and healthcare systems. Due to their relatively small populations and geographic isolation, tribes stand to benefit significantly from the services AI can perform. Moreover, tribes are uniquely well-suited to implement AI. This is the first law review article dedicated to exploring how AI can enhance tribal sovereignty. This article begins with a history of tribal sovereignty and then provides an overview of AI. Subsequent sections delve into the ways AI can augment tribal legal systems, healthcare, education, cultural preservation endeavors, economic development, and administrative capacity. By illuminating the intersection of AI and tribal sovereignty, this article seeks to foster a more inclusive discussion of AI
Consumption Governance: The Role of Production and Consumption in International Economic Law
Get PDFOver the last decade, international economic conflict has increased dramatically. To name only a few examples, the European Union banned the import of products from deforested land and is poised to impose duties on carbon-intensive imports; the United States banned Chinese imports made with forced labor; and countries the world over threatened to impose digital services taxes on U.S. corporations, leading to a new multilateral agreement on apportioning income tax revenue among countries.
This Article argues that these conflicts represent a shift in norms governing the authority to tax and regulate international commerce. Different fields within international economic law describe the limits of state authority to tax and regulate international commerce in diverse ways. But I argue that a trans-substantive set of principles underlies the varied doctrines in international trade, international tax, and international antitrust. Throughout the twentieth century, international law’s jurisdictional limitations rested on the notion that production could be taxed and regulated primarily, and often only, by the producing country (what this Article terms “Production Jurisdiction”). As a result, international law often prohibited consuming nations from imposing taxes or regulations on imported goods and services if the taxes or regulations depended on the circumstances of foreign production. By contrast, nations today increasingly claim jurisdiction to tax and regulate foreign production based on their interest in controlling the kinds of activity that consumption within their borders supports (what this Article terms “Consumption Jurisdiction”).
This Article makes three contributions. First, I describe the ongoing shift from Production Jurisdiction to Consumption Jurisdiction in international antitrust law, international tax, and international trade. Second, I argue that the shift from Production to Consumption Jurisdiction does not mean the end of globalization or the rise of protectionism. Rather, it reflects a change in states’ views on the role that national policy should play in creating a nation’s comparative advantage in the global economy. Third, I discuss the implications of the shift from Production to Consumption Jurisdiction
Second-Generation Flanking Policies: Addressing Extraterritorial and Non-Economic Costs of Trade Liberalization
No full textFlanking policies – policies that aim to address potential negative effects of trade liberalization, and/or the concerns of domestic stakeholders regarding those negative effects, and that are either legally or factually linked to trade liberalization – have been a critical component of international trade policy since at least 1962. Over the years, however, flanking policies have changed. This Article argues that there is a heretofore unnoticed distinction between what I term first-generation flanking policies and second-generation flanking policies. Specifically, first-generation flanking policies target negative economic effects, or costs, of trade liberalization experienced within the enacting country. Trade adjustment assistance is the paradigmatic example. By contrast, second-generation flanking policies target non-economic costs that arise outside of the enacting country. Examples include the European Union’s Carbon Border Adjustment Mechanism, Deforestation-free Products Regulation, and the United States’ Uyghur Forced Labor Prevention Act. Because second-generation flanking policies directly target foreign activity, they often employ more trade-distorting policies – tariffs, imports bans, and associated administrative hurdles for imports – than first-generation flanking policies, which more often relied on domestic subsidies. Moreover, they reflect a significant reorientation of the limits of state authority in international trade law. Whereas authority to tax and regulate production in international economic law has historically been based primarily on a territorial link to productive activity, second-generation flanking policies target production but rely on a territorial nexus with consumption of goods and services
The Limits of Individual Prosecutions in Deterring Corporate Fraud
Get PDFFifteen years after the largest financial scandal and economic crisis in a century, discussion of the problem of corporate crime too often borders on cliché. Endless calls from Congress, the media, the public, many scholars, and even the Justice Department itself, to recommit, over and over, to locking up more managers and executives to deter corporate wrongdoing portray the problem as relatively straightforward and blame legislative and executive failure of will. Through examination of the litigation record from over 100 prosecutions spanning the period from the 2008 financial crisis to the present, this Article presents evidence that relying on individual prosecutions to deter the most significant corporate crimes, especially those involving fraud in the financial sector, is less promising than believed. Structural features of crimes in the largest corporate organizations have made securing individual convictions and imprisonment, especially at senior levels, a chancy project for prosecutors. The Article further argues that its evidence relating both to failure rates and causes of those failures should point policymakers and enforcers beyond hackneyed calls for perp walks and prison and toward deeper thinking about a full suite of preventive tools, especially regulatory design
Beyond Neural Data: Cognitive Biometrics and Mental Privacy
Get PDFInnovations in wearable technology and artificial intelligence have enabled consumer devices to process and transmit data about human mental states (cognitive, affective, and conative) through what this paper refers to as ‘‘cognitive biometrics.’’ Devices such as brain-computer interfaces, extended reality headsets, and fitness wearables offer significant benefits in health, wellness, and entertainment through the collection and processing and cognitive biometric data. However, they also pose unique risks to mental privacy due to their ability to infer sensitive information about individuals. This paper challenges the current approach to protecting individuals through legal protections for ‘‘neural data’’ and advocates for a more expansive legal and industry framework, as recently reflected in the draft UNESCO Recommendation on the Ethics of Neurotechnology, to holistically address both neural and cognitive biometric data. Incorporating this broader and more inclusive approach into legislation and product design can facilitate responsible innovation while safeguarding individuals’ mental privacy
Closing remarks
No full textClosing remarks: Maj Gen Charlie Dunlap, USAF (Ret.), LENS Executive Directo