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Enforcing Soft Law in International Investment Arbitration
Get PDFDrawing examples from international environmental law, sustainable development, and corporate social responsibility, this Article examines the evolving role of international investment arbitration in the enforcement of non-binding soft law rules of international law. In doing so, the Article explains how investment tribunals can, and have been called upon to, interpret and, paradoxically, enforce soft law instruments. The Article calls for reevaluation of the nature of soft law and the role of investor-state dispute settlement in international rulemaking and enforcement. It also argues that for international environmental law and law on sustainable development, where the lack of an enforcement mechanism has long been identified as the single major weakness of the system, investor-state dispute settlement might be a viable option for increasing compliance with and enforcement of international law obligations of the sovereign states
Notes on Continental Constitutional Identities
Get PDFGeo-constitutional analysis examines the reciprocal effect of geography on constitutions. Within this analysis, a continental constitutional identity focuses on the intersection between institutional geographies and institutional identities, where constitutions are understood as meta-institutions. In some constitutions, belonging to a continent is part of the national identity, while other constitutions only signal a non-geographic, usually an ethnic, identity. The US Constitution is an example of the former. The quintessential example of a non-geographic constitution is the Constitution of the Russian Federation. A similar disregard of continental identities can be found in Israel and the Arab League countries east of the Sinai Peninsula, in contrast to North African constitutions west of this peninsula. The potential for armed conflict due to the presence or absence of these identities can be mitigated by continental nesting (i.e., by aligning the geographic and socio-political characterization of a continent). The Article illustrates this approach in the context of Africa, arguably the least geopolitically misaligned among Old World continents, by explaining why a post-colonial Africa includes Israel and all Arab League countries. Similar analysis of other continents can explain how to mitigate intra- and intercontinental conflict by explicitly nesting constitutional identities within continents based on evolving geopolitical exigencies
Mixed-Up Origins: The Case for a Gestational Presumption in Embryo Mix-ups
Get PDFEmbryo mix-ups-instances in which fertility clinics mistakenly implant one couple with another couple\u27s embryo confound courts\u27 determinations of who, between the two couples, are the legal parents. Lax regulation of the fertility industry permitted this relatively new injury to develop, and it has led to morally and legally fraught questions of parenthood and personal autonomy. This Note reviews parentage doctrines, beginning with a discussion of the martial presumption; it also tracks how courts have traditionally responded to parentage questions that fertility medicine has generated, including embryo division in divorce and parentage in surrogacy contracts. It then analyzes potential approaches to resolving parentage disputes in embryo mix-ups and outlines how each approach either comports with or contradicts other parentage doctrines. Finally, this Note proposes that in cases of embryo mix-ups, courts should adopt a presumption that the gestational parents are the legal parents. This solution both avoids legally endorsing nonconsensual surrogacy and incentivizes greater clinic accountability for these grave mistakes
APPLICATION OF MFW FRAMEWORK DEFEATS CHALLENGE TO CORPORATE CHARTER AMENDMENT FAVORING CONTROL STOCKHOLDER
Get PDFA New Green Wave: Lessons from Argentina\u27s Marea Verde for Legalizing Abortion over Religious Opposition in the United States
Get PDFThis Note examines the role Christianity, particularly Roman Catholicism, played in influencing abortion laws in the United States and Argentina and offers a solution for new federal protections of abortion rights in the United States. Part II discusses the evolution of abortion rights in both countries, from their foundations to their recent reversals. Part III scrutinizes the ways in which religious ideology factored into the different logical frameworks utilized by the different parties involved in the fight for abortion access, the relevant tactics employed, and the subsequent outcomes. Considering the impact in Argentina of US jurisprudence regarding abortion rights, the recent legal revolution in Argentina based on Roe may reinvigorate its influence in the United States. Accordingly, Part IV imagines how the US abortion rights movement can successfully push for similar legislation to the current law in Argentina: one federal law recognizing the right to elective abortion rooted in the pregnant person\u27s autonomy and dignity (the IVE Law ), and another that creates federal social support programs for the mother and child in the early years of the child\u27s life (the 1,000-Day Law ).\u272 This federal legislative framework can offer a crucial middle ground for more moderate or liberal Christians and Catholics by offering more robust practical support of the lives responsible for and created through the pregnancy, thus fostering enough electoral support to secure legislative victory
A Game Theoretic Approach to Balance Privacy Risks and Familial Benefits
Get PDFAs recreational genomics continues to grow in its popularity, many people are afforded the opportunity to share their genomes in exchange for various services, including third-party interpretation (TPI) tools, to understand their predisposition to health problems and, based on genome similarity, to find extended family members. At the same time, these services have increasingly been reused by law enforcement to track down potential criminals through family members who disclose their genomic information. While it has been observed that many potential users shy away from such data sharing when they learn that their privacy cannot be assured, it remains unclear how potential users’ valuations of the service will affect a population’s behavior. In this paper, we present a game theoretic framework to model interdependent privacy challenges in genomic data sharing online. Through simulations, we find that in addition to the boundary cases when (1) no player and (2) every player joins, there exist pure-strategy Nash equilibria when a relatively small portion of players choose to join the genomic database. The result is consistent under different parametric settings. We further examine the stability of Nash equilibria and illustrate that the only equilibrium that is resistant to a random dropping of players is when all players join the genomic database. Finally, we show that when players consider the impact that their data sharing may have on their relatives, the only pure strategy Nash equilibria are when either no player or every player shares their genomic data
Time to SLAPP Back: Advocating Against the Adverse Civil Liberties Implications of Litigation that Undermines Public Participation
Get PDFDefamation law is a catchall term encompassing civil claims for reputational harm to an individual, including slander and libel. Defamation claims originated in English common law and have since evolved within the American legal system. Scholars have characterized the law of defamation as “a forest of complexities, overgrown with anomalies, inconsistencies, and perverse rigidities” and as a “‘fog of fictions, inferences, and presumptions.’” Amid these inherent variations and complexities of defamation law and litigation — including the largely state-specific nature of tort law development — emerges a disturbing trend across jurisdictions. In the modern era, defamation claims have been used not to protect purported victims on the receiving end of false claims, but rather to punish and silence individuals advancing truthful information or critical statements of opinion. These burgeoning lawsuits, known as strategic lawsuits against public participation (SLAPP suits), threaten free speech principles.
This paper first introduces defamation causes of action and contextualizes the emergence of SLAPP suits. Section II provides a more detailed analysis of several emerging cases that underscore who may be most vulnerable to such claims — including victims of sexual assault and domestic violence, as well as individuals speaking out against racial discrimination and non-white individuals more generally — and illuminates the burdens that these claims impose on defendants. Section III provides an analysis of anti-SLAPP legislation as well as the limitations of current policies. Section IV provides some recommended solutions and suggested next steps. Section V provides a brief summary and conclusor remark
Election Administration as a Licensed Profession
Get PDFThis Essay argues that election administrators should be subject to a professional licensing regime, much like licensing in medicine and law. Making election administration a licensed profession would not only expand requirements for training, but also enhance the professional identification of these officials, reinforcing norms of integrity and impartiality. By raising barriers to entry, licensing would make it more costly for partisans to obtain these offices. Licensing could also improve public confidence in the professionalism of election administration. Such a reform meets our moment. While many states have increased training requirements for election administrators, significant gaps remain. Moreover, existing reforms to election administration--ranging from creating nonpartisan structures to disclosing more information to shame outliers--have either stalled or been too indirect to confront the rising partisan challenges election administrators face. The Essay concludes with a case study illustrating how such a licensing regime could be implemented in Michigan
Race, Gatekeeping, Magical Words, and the Rules of Evidence
Get PDFAlthough it might not be apparent from the Federal Rules of Evidence themselves, or the common law that preceded them, there is a long history in this country of tying evidence-what is deemed relevant, what is deemed trustworthy-to race. And increasingly, evidence scholars are excavating that history. Indeed, not just excavating, but showing how that history has racial effects that continue into the present.
One area that has escaped racialized scrutiny-at least of the type I am interested in-is that of expert testimony. Even in my own work on race and evidence, I have avoided discussion of expert testimony. In this brief Essay, I hope to rectify this omission. In a sense, my goal is twofold. I first seek to bring attention to the way expert testimony rules seem to play favorites along lines of race and thus entrench a kind of epistemic inequity. I then hope to reimagine expert testimony rules so that they are fairer-and even anti-racist.
To situate my argument, I begin by zooming out to look at the Rules as a whole. Part I provides a brief overview of the many ways evidence has always been raced, from what is deemed relevant and why, to who is deemed credible and who is not. Part II narrows the focus to expert testimony, providing a racial reading of Frye v. United States, Daubert v. Merrell Dow Pharmaceuticals, Inc., and Rule 702. This sets the stage for Part III, in which I imagine a better, different Rule 702 through a critical race theory ( CRT ) lens. Finally, in the Conclusion, I gesture toward a critique of evidence law in general and call attention to a different kind of gatekeeping that has for too long impoverished evidence scholarship.
As I have observed in prior work, one of the pleasures of contributing to symposia-especially symposia where each contribution is brief-is the ability to engage in new explorations, test new ideas, and offer new provocations. Allow me to add another benefit: symposium essays have the potential to be uniquely generative, to be conversation starters, and to lay the groundwork for longer projects. I certainly hope that will be the case here for this Symposium, Reimagining the Rules of Evidence at 50
Promoting Equity through Equitable Risk Tradeoffs
Get PDFThe impact and economic merits of President Biden’s Executive Order 13985 on equity depend on how the executive order is implemented. While policy discussion to date has focused on equitable outcomes, we propose framing risk equity policies in terms of equitable risk tradeoff rates based on six policy guidelines. The starting point for ex ante evaluation of equity for mortality risk policies should be the symmetric application of the value of a statistical life (VSL) to all groups. Because of the substantial heterogeneity in VSLs by income and demographic characteristics, symmetric tradeoff rates generate subsidies and deficits relative to private values of risk. Efforts to provide for distributional preferences should be grounded in an understanding of the differentials already provided through application of a uniform VSL. Targeting government programs to specific groups ex ante should be coupled with estimates of the efficiency loss based on symmetric tradeoff rates and the implicit tradeoff rate ratio relative to the average VSL needed to support the redistributive policy. Here, we propose equity guidance that could be incorporated in a revised version of Office of Management and Budget Circular A-4. We contrast the ex ante equity guidance approach with the ex post risk equity evaluation procedure that is incorporated in the Biden Administration’s recently proposed Justice40 plan, where 40% of the benefits of existing programs must be targeted to certain minority groups without ex post examination of their cost effectiveness either feasible or currently planned