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DELAWARE SUPREME COURT REQUIRES STOCKHOLDER VOTE TO APPROVE COMPANY’S TRANSFER OF PLEDGED ASSETS TO SATISFY DEFAULTED DEBT
Get PDFThe Enforce and Protect Act: A Primer on the Administrative CBP Process and Summary of Judicial Decisions
Get PDFEnacted in 2015, the Enforce and Protect Act (EAPA)1 gives U.S. Customs & Border Protection (CBP) enhanced tools to enforce U.S. antidumping and countervailing duty (AD/CVD) laws and to protect US industry, which has complained for years that importers and foreign sellers were evading US AD/CVD orders.2 From the point of view of many in US industry, by the time CBP took enforcement action, violators would disappear and CBP would be unable to collect AD/CVD owed for products imported into the United States.3 As a result, US industry would contend that the intended effects of the AD/CVD order, namely, a more level playing field, were often not realized. US industry successfully lobbied for Congress to give CBP increased powers to fight AD/CVD evasion. The EAPA is the result of those efforts. Prior to the EAPA, the U.S. International Trade Commission (ITC) and U.S. Department of Commerce (Commerce) would conduct AD/CVD investigations and, if the results of the investigation warranted, Commerce would issue an AD/CVD order. Importers would, per the mandate of 19 U.S.C. � 1484,4 then exercise reasonable care and be required to determine whether the goods they import were subject to an AD/CVD order. A failure of an importer to exercise reasonable care subjected the importer to possible civil penalties under 19 U.S.C. � 1592 or, in more egregious (willful) cases, criminal prosecution under 18 U.S.C. � 545.
(E)racing Speech in School
Get PDFSpeech on race and racism in our nation’s public schools is under attack for partisan gain. The Free Speech Clause of the First Amendment teaches a lot about the wisdom and legality of laws that chill such speech in the classroom. But more importantly, a First Amendment analysis of these laws reveals profound insights about the health and meaning of our free speech doctrine.
Through a First Amendment analysis of “anti-critical race theory” laws, this essay illuminates the first principles of free speech law. Specifically, it shows that the First Amendment offers little refuge to teachers or parents looking to overturn anti-critical race theory laws, but often will protect students’ right to receive the information these laws chill. The deeper insight of these conclusions is that they rest on the same, sound constitutional reasoning: that the First Amendment works to protect equal political participation in democratic self-governance, as part of the Constitution’s larger foundational goal of securing equal popular sovereignty.
The First Amendment implications of these speech-chilling laws thus illustrate that, in service of democratic governance, the free speech right (1) leaves substantial room for government regulation of speech to protect safe and effective public services, including public school education; (2) rejects paternalism in favor of fostering individual enlightenment and growth in service of effective democratic self-governance; and (3) is primarily designed to protect the free flow of information so that citizens make good choices in their social, political, and economic lives. This analysis emphasizes that the First Amendment protects citizens’ right to receive information critical to fulfilling and benefitting from their role as citizens. Anti-CRT laws do not run afoul of this principle—and in some ways they actually advance it—when it comes to regulating teachers’ and parents’ speech. The laws do, however, hinder democratic governance as applied to students’ rights to receive information critical to their ability to engage as full citizens. Finally, this conclusion illustrates how seemingly disparate areas of free speech law all rest on a common anti-orthodoxy principle that serves to tie First Amendment law together and advance full and equal democratic participation
The Death of the Legal Subject
Get PDFThe law is often engaged in prediction. In the calculation of tort damages, for example, a judge will consider what the tort victim’s likely future earnings would have been, but for their particular injury. Similarly, when considering injunctive relief, a judge will assess whether the plaintiff is likely to suffer irreparable harm if a preliminary injunction is not granted. And for the purposes of a child custody evaluation, a judge will consider which parent will provide an environment that is in the best interests of the child.
Relative to other areas of law, criminal law is oversaturated with prediction. Almost every decision node in the criminal justice system demands a prediction of individual behavior: does the accused present a flight risk, or a danger to the public (pre-trial detention); is the defendant likely to recidivate (sentencing); and will the defendant successfully reenter society (parole)? Increasingly, these predictions are made by algorithms, many of which display racial bias, and are hidden from public view. Existing scholarship has focused on de-biasing and disclosing algorithmic models, but this Article argues that even a transparent and unbiased algorithm may undermine the epistemic legitimacy of a judicial decision.
Law has historically generated truth claims through discursive and dialogic practices, using shared linguistic tools, in an environment characterized by proximity and reciprocity. In contrast, the truth claims of data science are generated from data processing of such scale and complexity that it is not commensurable with, or reversible to, human reasoning. Data science excludes the individual from the production of knowledge about themselves on the basis that “unmediated” behavioral data (not self-reported or otherwise subject to conscious manipulation by the data subject) offers unrivaled predictive accuracy. Accordingly, data science discounts the first-person view of reality that has traditionally underwritten legal processes of truth-making, such as individual testimony.
As judges turn to algorithms to guide their decision making, knowledge about the legal subject is increasingly algorithmically produced. Statistical predictions about the legal subject displace qualitative knowledge about their intentions, motivations, and moral capabilities. The reasons why a particular defendant might refrain from recidivism, for example, become less important than the statistical features they share with historical recidivists. This displacement of individual knowledge with algorithmic predictions diminishes the participation of the legal subject in the epistemic processes that determine their fundamental liberties. This produces the death of the legal subject, or the emergence of new, algorithmic practices of signification that no longer require the input of the underlying individual
The Case for Establishing a Collective Perspective to Address the Harms of Platform Personalization
Get PDFPersonalization on digital platforms drives a broad range of harms, including misinformation, manipulation, social polarization, subversion of autonomy, and discrimination. In recent years, policy makers, civil society advocates, and researchers have proposed a wide range of interventions to address these challenges. This Article argues that the emerging toolkit reflects an individualistic view of both personal data and data-driven harms that will likely be inadequate to address growing harms in the global data ecosystem. It maintains that interventions must be grounded in an understanding of the fundamentally collective nature of data, wherein platforms leverage complex patterns of behaviors and characteristics observed across a large population to draw inferences and make predictions about individuals.
Using the lens of the collective nature of data, this Article evaluates various approaches to addressing personalization-driven harms under current consideration. It also frames concrete guidance for future legislation in this space and for meaningful transparency that goes far beyond current transparency proposals. It offers a roadmap for what meaningful transparency must constitute: a collective perspective providing a third party with ongoing insight into the information gathered and observed about individuals and how it correlates with any personalized content they receive across a large, representative population. These insights would enable the third party to understand, identify, quantify, and address cases of personalization-driven harms. This Article discusses how such transparency can be achieved without sacrificing privacy and provides guidelines for legislation to support the development of such transparency
Prospecting, Sharecropping, and the Recording Industry
Get PDFDigital-era disruption has had a significant impact on the recording industry and the business of music more generally. Digital-era music disruption draws attention to patterns of continuity within the recording industry. Notably, despite widespread use of digital technologies for the creation, dissemination, and consumption of music, core recording industry business models largely still draw from the predigital era. Recording industry business models have long been compared to other exploitative business models based on debt, including the sharecropping business. Business models in the recording industry have been a source of dispute by a broad range of recording artists, including highly successful ones such as Taylor Swift. These models have also reflected racialized patterns of extraction that have particularly disadvantaged generations of African American artists. This Article considers the impact of racialized extraction patterns in the recording industry for the racial wealth gap. It also discusses the need for alternative business and compensation models for all artists in the recording industry
Efficiency and Equity in Regulation
Get PDFThe Biden Administration has signaled an interest in ensuring that regulations appropriately benefit vulnerable and disadvantaged communities. Prior presidential administrations since at least the Reagan Administration have focused on ensuring that regulations are efficient, maximizing the net benefits to society as a whole, without considering who benefits or who loses from these policies. Critics of this process of regulatory review have celebrated President Biden’s initiative, hoping that distributional analysis and the pursuit of equity will displace traditional tools and interests such as cost-benefit analysis and the pursuit of efficiency. Meanwhile, supporters of the current process are concerned that pursuing equity will come at significant cost to efficiency and ultimately leave everyone worse off.
This framework--efficiency versus equity-—is misguided and counterproductive in many cases. As an initial matter, all regulations have distributional consequences, and the traditional arguments for ignoring these consequences are outdated or wrong. Understanding distributional effects and considering equity in regulation is long overdue.
But current agency practice is often far from efficient, and there are opportunities to advance equity by improving the efficiency of regulations. In fact, neutral procedures such as cost-benefit analysis are more likely to benefit disadvantaged groups than is raw politics, whatever the intention, at least based on experience in regulatory policy. Furthermore, cost-benefit analysis and efficiency considerations more generally could help avoid outcomes that are, in their implementation, inequitable.
This Article supports these arguments by drawing on examples from the environmental context, where considerations of equity and efficiency have often been thought to conflict. Importantly, it highlights how thinking about both equity and efficiency can help regulators identify ways to promote both using their existing authorities. And, in particular, it argues that funding and subsidy programs could be deployed in connection with regulatory actions to help realize equitable outcomes. This Article articulates some simple rules of thumb agencies could use to identify these contexts and thoughtfully deploy their resources, and it compares this approach to broader proposals to consider equity in regulation more generally
The Limits of Portfolio Primacy
Get PDFAccording to the “portfolio primacy” theory, large asset managers, and in particular large index funds, can and will undertake the role of “climate stewards” and will push corporations to reduce their carbon footprint. This theory is based on the view that index fund portfolios mirror the entire market and therefore have strong financial incentives to reduce market-wide threats, such as climate change.
But how much can we rely on portfolio primacy to mitigate the effects of climate change? In this Article, I provide a conceptual and empirical assessment of the potential impact of portfolio primacy on climate change mitigation by examining the scope of action, economic incentives, and fiduciary conflicts of index fund managers. The analysis reveals three major limits, each reinforcing the others, that undermine the promise of portfolio primacy.
First, the potential scope of index fund stewardship is narrow, as most companies around the world, including most carbon emitters, are private or controlled companies. Second, index funds internalize only a fraction of the social cost of climate change and therefore have very weak incentives to engage in ambitious climate stewardship. Third, index fund managers advise dozens of index funds with conflicting interests with respect to climate mitigation and therefore face serious fiduciary conflicts that would hamper any ambitious mitigation strategy. This analysis shows that we should have very modest expectations about the role of portfolio primacy in the fight against climate change
So Far Yet So Close: Comparing Governing Laws in Arbitration Agreements under English and Chinese Laws
Get PDFThe governing law of arbitration agreements determines the validity of an arbitration agreement and equally the entire arbitration. However, there is huge disagreement around the world as to the appropriate choice-of-law rules for deciding this governing law, particularly between rules favoring the governing law of the underlying contract (represented by the English approach) and the curial law (represented by the Chinese approach). By comparing the choice-of-law rules of these two jurisdictions, the authors argue that this disagreement is futile and unnecessary because both jurisdictions’ choice-of-law rules are pro-validity in substance and likely lead to the arbitration agreement being upheld. There is, therefore, no urgency to change the status quo by asking one jurisdiction to follow another’s choice-of-law approach. The authors conducted empirical research on relevant Chinese judicial decisions to add further depth to the comparison
Two Countries in Crisis: Man Camps and the Nightmare of Non-Indigenous Criminal Jurisdiction in the United States and Canada
Get PDFThousands of Indigenous women and girls have gone missing or have been found murdered across the United States and Canada; these disappearances and killings are so frequent and widespread that they have become known as the Missing and Murdered Indigenous Women Crisis (MMIW Crisis). Indigenous communities in both countries often lack the jurisdiction to prosecute violent crimes committed by non-Indigenous offenders against Indigenous victims on Indigenous land. Extractive industries—businesses that establish natural resource extraction projects—aggravate the problem by establishing temporary housing for large numbers of non-Indigenous, primarily male workers on or around Indigenous land (“man camps”). Violent crimes against Indigenous communities around extractive industry projects have in- creased with the establishment of man camps while the current legal systems leave Indigenous communities vulnerable against this clear threat. Both the United States and Canada have endorsed international declarations of Indigenous rights, agreeing to protect Indigenous communities from violence, yet the MMIW Crisis in both countries con- tinues. This Note first argues that both the United States and Canada can best further their commitments to international Indigenous rights while also combatting the MMIW Crisis by allowing Indigenous communities to exercise full criminal jurisdiction over non-Indigenous assailants of Indigenous victims on Indigenous lands. This Note then argues that, until full criminal jurisdiction over non-Indigenous offenders is realized, the United States and Canada can help further Indigenous international rights by providing extractive industries with financial incentives to address their role in enabling the MMIW Crisis