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Flexible Institution Building in the International Anti-corruption Regime: Proposing a Transnational Asset Recovery Mechanism
Get PDFAsset recovery is a fundamental principle of anti-corruption law, without which the financial damage from corruption cannot be repaired. Yet recovering assets is notoriously difficult and time-consuming, and the United Nations Convention Against Corruption provides little technical or institutional support to facilitate such returns. To remedy this, we propose the creation of a transnational asset recovery mechanism that could provide myriad services to states upon request, including gathering and publishing information, providing technical assistance and capacity building, helping to conclude agreements on asset return, and monitoring returned funds. Theoretically, we introduce the concepts of customizability and selectability to explain why a flexible transnational asset recovery mechanism has advantages over more formal international institutions, such as an international anti-corruption court. These benefits include lower financial and political costs, enhanced adaptability, and a greater likelihood of enhancing interstate cooperation regarding asset returns
The Undertow: Scenes from a Slow Civil War
No full textAn unmatched guide to the religious dimensions of American politics, Jeff Sharlet journeys into corners of our national psyche where others fear to tread. The Undertow is both inquiry and meditation, an attempt to understand how, over the last decade, reaction has morphed into delusion, social division into distrust, distrust into paranoia, and hatred into fantasies―sometimes realities―of violence.
Across the country, men “of God” glorify materialism, a gluttony of the soul, while citing Scripture and preparing for civil war―a firestorm they long for as an absolution and exaltation. Lies, greed, and glorification of war boom through microphones at hipster megachurches that once upon a time might have preached peace and understanding. Political rallies are as aflame with need and giddy expectation as religious revivals. At a conference for incels, lonely single men come together to rage against women. On the Far Right, everything is heightened―love into adulation, fear into vengeance, anger into white-hot rage. Here, in the undertow, our forty-fifth president, a vessel of conspiratorial fears and fantasies, continues to rise to sainthood, and the insurrectionist Ashli Babbitt, killed on January 6 at the Capitol, is beatified as a martyr of white womanhood.
Framing this dangerous vision, Sharlet remembers and celebrates the courage of those who sing a different song of community, and of an America long dreamt of and yet to be fully born, dedicated to justice and freedom for all.
Exploring a geography of grief and uncertainty in the midst of plague and rising fascism, The Undertow is a necessary reckoning with our precarious present that brings to light a decade of American failures as well as a vision for American possibility.https://scholarship.law.duke.edu/justin_miller_awards_books/1126/thumbnail.jp
Twenty-First Century Split: Partisan, Racial, and Gender Differences in Circuit Judges Following Earlier Opinions
Get PDFJudges shape the law with their votes and the reasoning in their opinions. An important element of the latter is which opinions they follow, and thus elevate, and which they cast doubt on, and thus diminish. Using a unique and comprehensive dataset containing the substantive Shepard’s treatments of all circuit court published and unpublished majority opinions issued between 1974 and 2017, we examine the relationship between judges’ substantive treatments of earlier appellate cases and their party, race, and gender. Are judges more likely to follow opinions written by colleagues of the same party, race, or gender? What we find is both surprising and nuanced. We have two major findings. First, over the forty-four-year span we studied, we find growing partisan differences in positive treatments of earlier cases. The partisan differences are largest for treatments in ideologically salient categories of cases. Interestingly, the partisan differences arise more for treatments of opinions written by Democratic appointees than for opinions written by Republican appointees, which we think is best explained by an accelerating movement among Republican appointees in a conservative direction compared to a steady move among Democratic appointees in a liberal direction. The increase in partisan differences is not a function of presidential cohorts or age cohorts. Second, there are intraparty racial and gender differences in positive treatments of past cases, and these differences are similar to the partisan differences. Within each party, Black and White judges differ in their treatments of opinions authored by Black co-partisans, Hispanic and White judges differ in their treatments of opinions authored by Hispanic co-partisans, and female and male judges differ in their treatments of opinions authored by female co-partisans. Similar to the partisan divergence noted above, we also find that some of these differences increase in magnitude over time — with particularly notable increases in the Black-White Democratic differences, Hispanic-White Republican differences, and female-male Republican differences. Notably, the racial and gender differences we find in positive Shepard’s treatments are not mirrored in most studies of racial and gender differences in judicial behavior, which focus on merits votes and include a much smaller number of cases.
These results defy easy explanation. They do not support the proposition that party, race, and gender have always played a pervasive role for judges. Instead, our results provide evidence of increasing partisan, racial, and gender polarization among judges in recent years. For reasons we explain in the body of this Article, the partisan, racial, and gender differences we find appear to be a function of political ideology. Further, because the racial and gender differences are within parties, our results indicate that not only partisan differences but also intraparty racial and gender ideological differences have risen in recent years (particularly for Republican judges).
Our data thus reveal polarization among circuit judges and, as a result, in their shaping of the law. Many groups in the United States have become more ideologically polarized in recent years. Our data indicate that judges are one of them
Reframing the DEI Case
Get PDFCorporate firms have long expressed their support for the idea that their organizations should become more demographically diverse while creating a culture that is inclusive of all members of the firm. These firms have traditionally, however, not been successful at improving demographic diversity and true inclusion within the upper echelons of their organizations. The status quo seemed unlikely to move, but expectations for corporate firms were upended after the #MeToo Movement of 2017 and 2018, which was followed by corporate support of the #BlackLivesMatter Movement in 2020. These two social movements, while distinct in many ways, forced firms to rethink how to approach the status of women and people of color within their organizations. It forced them to ask, yet again, but with renewed energy: “What is the best way to improve diversity and inclusion within firms?”
This Article seeks to contribute to scholarly conversations aimed at addressing that, admittedly elusive, question head-on. It argues that in addition to pursuing the business and legal cases for diversity when crafting diversity, equity, and inclusion (“DEI”) programs, firms should also employ insights from behavioral ethics literature. By utilizing insights from behavioral ethics literature, firms can better prompt decisionmakers to recognize that DEI questions—whether under the business or legal case for diversity—are questions that should be evaluated from an ethical perspective. Scholars and firm leaders have long debated the accuracy of the business case rationale in support of DEI efforts. More recent scholarship has focused on the legal case in support of DEI efforts. This Article recognizes that firms committed to crafting meaningful DEI reforms must focus on both the business and legal cases, but they must reinforce the ethical ramifications of DEI concerns under both frameworks. In short, firms committed to creating a successful DEI program must find ways to evoke ethical framing when engaged in the creation of diverse, equitable, and inclusive organizational cultures
Increasing Compliance with International Pandemic Law: International Relations and New Global Health Agreements
Get PDFImmigration Incentives in FCPA Enforcement: The Case for Protecting At-Risk Foreign Whistleblowers
Get PDFIn recent years, the Securities and Exchange Commission (“SEC”) has aggressively enforced the Foreign Corrupt Practices Act (“FCPA”), which prohibits bribing foreign officials for business purposes. In doing so, it has relied heavily on tips from its increasingly popular whistleblower program, including ones received from scores of foreign countries. However, foreign whistleblowers enjoy unequal protections vis-à-vis their U.S. counterparts. For instance, foreign whistleblowers are not protected against retaliation for lawfully reporting information to the SEC. Worse still, some foreign whistleblowers are less protected than others due to inadequate protections in their domestic systems, and some face especially great risks for exposing corrupt officials. This Note argues that Congress should provide additional protections to foreign whistleblowers who report FCPA violations and are at greater risk of retaliation. This Note is the first to argue for immigration incentives and outlines two potential solutions: creating a new “W” visa or amending the existing S-5 “informant” visa
Not Up For Deliberation: Expanding the Peña-Rodriguez Protection to Cover Jury Bias Against LGBTQ+ Individuals
No full textDiscrimination against LGBTQ+ individuals persists within the United States criminal justice system, which is no surprise given the history of LGBTQ+ discrimination in the United States. Evidence of jurors convicting LGBTQ+ defendants—or, in some extreme cases, sentencing them to death—because of the defendant’s queer identity is especially concerning.
Standing in the way of protecting LGBTQ+ defendants from LGBTQ+ bias in jury deliberations is Federal Rule of Evidence 606(b), which prohibits defendants from using juror testimony regarding jury deliberations to impeach the jury’s verdict. However, in 2017, the Supreme Court in Peña-Rodriguez v. Colorado provided an exception to this “no-impeachment rule” for clear statements of racial bias that significantly motivated the juror’s decision. The Supreme Court has a history of extending protections against racial discrimination in the jury context to sex discrimination, and, in 2020, the Supreme Court ruled in Bostock v. Clayton County that the prohibition against sex discrimination in employment under Title VII of the Civil Rights Act prohibits discrimination based on sexual orientation and gender identity. Thus, there may be multiple constitutional avenues to expanding the protection granted in Peña-Rodriguez to LGBTQ+ bias in jury deliberations.
This Note argues that such an expansion can soundly be constitutionally granted, particularly when analyzed from an intersectional perspective. Only then can the criminal justice system ensure that LGBTQ+ defendants are punished for what they do, not who they are or who they love