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Criminalizing Starvation in an Age of Mass Deprivation in War: Intent, Method, Form, and Consequence
Get PDFMass starvation in war is resurgent. Across a range of conflicts, belligerents have attacked farmers and humanitarian workers; destroyed, looted, or rendered unusable food and food sources; and cut off besieged populations from the external supply of essential goods. Millions have been left in famine or on the brink thereof. Increasingly, this has elicited calls for accountability. However, traditional criminal categories are not promising in this respect. The situation and nature of objects indispensable to survival is such that they typically provide sustenance to both civilians and combatants; the conduct that deprives people of those objects often involves acting on the objects, rather than acting directly on the affected persons; and the causal chain from deprivation to civilian suffering is long and complex. Appropriately, then, attention has turned instead towards the recently codified and largely untested war crime of starvation of civilians as a method of warfare. Whether and how this framework can underpin a legal response to mass deprivation hinges on how key debates as to the crime\u27s meaning are resolved. Entering those debates, this Article debunks the common view that the starvation crime attaches only to conduct that seeks to weaponize civilian suffering. Instead, it presents an alternative theory according to which the crime should be understood transitively as focused primarily on the act of deprivation, rather than the outcome it produces. This approach would reshape how to think about the crime, with particularly acute implications for the regulation of sieges and blockades
What Property Does
Get PDFFor centuries, scholars have wrestled with seemingly intractable problems about the nature of property. This Article offers a different approach. Instead of asking what property is, it asks what property does. And it argues that property protects people’s reliance on resources by moderating the pace of change. Modern scholarly accounts emphasize voluntary transactions as the source and purpose of reliance in property. Such “transactional reliance” implies strong, stable, and enduring rights. This Article argues that property law also reflects a very different source of reliance on resources, one that rises and falls simply with the passage of time. This new category of “evolutionary reliance” is at the heart of core property doctrines like adverse possession, waste, and the rule against perpetuities. Focusing on evolutionary reliance reveals a new vision of property, not as a bundle of sticks or a bare right to exclude, but instead as a nexus of competing and dynamic reliance interests that can change over time. This new vision has important conceptual and doctrinal consequences for common law doctrines and the Takings Clause, and it highlights the surprising dynamism and change in property
Will Corporations Deliver Value to All Stakeholders?
Get PDFAmid growing concerns for the effects that corporations have on stakeholders, supporters of stakeholder governance advocate relying on corporate leaders to use their discretion to protect stakeholders, and they seem to take corporate pledges to do so at face value. By contrast, critics question whether corporate leaders have incentives to protect stakeholders and to follow through on pledges to do so. We provide empirical evidence that can contribute to resolving the debate between these rival views.
The most celebrated pledge by corporate leaders to protect stakeholders was the Business Roundtable\u27s 2019 Statement on the Purpose of a Corporation (the BRT Statement ). The BRT Statement expressed a commitment to deliver value to all stakeholders, not just shareholders, and was widely viewed as a major milestone that would usher in stakeholder capitalism and significantly improve the treatment of stakeholders. If any companies could be expected to follow through on stakeholder rhetoric, those whose CEOs signed the highly visible BRT Statement would be natural candidates to do so.
We review a wide array of hand-collected corporate documents of the 128 U.S. public companies that joined the BRT Statement (the BRT Companies ). Examining the two-year period following the issuance of the BRT Statement, we obtain the following six findings:
First, the numerous BRT Companies that updated their corporate governance guidelines during the two-year period generally did not add any language that improves the status of stakeholders and, indeed, most of them chose to retain a commitment to shareholder primacy in their guidelines.
Second, as of the end of the two-year period, most of the BRT Companies had governance guidelines that reflected a shareholder primacy approach.
Third, in SEC submissions or securities filings responding to the over forty shareholder proposals that were submitted to BRT Companies regarding their implementation of the BRT Statement, most of the BRT Companies explicitly stated that their joining the BRT Statement did not require any such changes, and none of them accepted that the Statement required any changes.
Fourth, all of the BRT Companies had and retained corporate bylaws that reflect a shareholder-centered view.
Fifth, in their proxy statements following the BRT Statement, the great majority of the BRT Companies did not even mention their joining the BRT Statement, and, among the minority of companies that did mention it, none indicated that their endorsement required or was expected to result in any changes in stakeholder treatment.
Sixth, the BRT Companies all continued to pay directors compensation that strongly aligns their interests with shareholder value and avoided any use or support of stakeholder-oriented metrics.
Overall, our findings support the view that the BRT Statement was mostly for show and that BRT Companies joining it did not intend or expect it to bring about any material changes in how they treat stakeholders
Barriers to Criminal Enforcement Against Counterfeiting in China
Get PDFMultinational companies (MNCs) with valuable trademarks in China seek criminal enforcement against counterfeiting because other available avenues of relief, such as administrative and judicial remedies, have proven to be ineffective. While MNCs prefer enforcement through China’s Police, the Public Security Bureau (PSB), many MNCs are unaware of the significant hidden dangers of using the PSB.
Most MNCs will delegate enforcement of trademark rights to their Chinese subsidiaries. These subsidiaries are known to make illegal payments to the PSB that may violate the laws of the PRC as well as the United States Foreign Corrupt Practices Act (FCPA). These acts expose MNCs to draconian penalties under PRC law and the FCPA. MNCs can be unaware of these illegal practices because many MNCs organize their business structures and intellectual property (IP) management strategies in ways that shield MNCs from reviewing some of the on-the-ground actions by their Chinese subsidiaries. This Article exposes these risks, explains how some of these risks arise, and makes suggestions on how MNCs can structure their business organizations and IP management structures in China to eliminate or mitigate these risks.
Judicial Retention Elections for State Appellate Judges: The Implications of the Ballot-Access Cases
Get PDFThis Article considers methods by which state appellate court judges are selected. It focuses on the evolution of and rationale for the so-called merit-selection system, a hybrid approach that prevails in a substantial number of jurisdictions. Under merit selection, there is an initial gubernatorial appointment based on recommendations from a nominating committee and a retention election, which is limited to a single candidate and a single question: whether the initially appointed appellate judge should be retained so as to serve a new term. The retention election is a form of election that satisfies states’ requirements that judges be elected. But the limits on access to the retention-election ballot pose substantial issues under the Supreme Court\u27s ballot-access cases. The Article recognizes that merit selection has been challenged under state and federal constitutional theories but not under the ballot access cases, which may prove to be the Achilles Heal of the retention election system. Strict scrutiny applies to the total foreclosure of access to an election ballot, and the strict-scrutiny standard applies to judicial elections. Strict scrutiny requires consideration of alternatives, such as contested elections or judicial appointments. While merit-selection systems have long been challenged yet never toppled, consideration of the ballot-access cases may result in a different outcome, as judicial retention elections serve as a complete bar to the ballot for all candidates other than the candidate who seeks retention for a new term
Sociotechnical Safeguards for Genomic Data Privacy
Get PDFRecent developments in a variety of sectors, including health care, research and the direct-to-consumer industry, have led to a dramatic increase in the amount of genomic data that are collected, used and shared. This state of affairs raises new and challenging concerns for personal privacy, both legally and technically. This Review appraises existing and emerging threats to genomic data privacy and discusses how well current legal frameworks and technical safeguards mitigate these concerns. It concludes with a discussion of remaining and emerging challenges and illustrates possible solutions that can balance protecting privacy and realizing the benefits that result from the sharing of genetic information
The Reckoning: The Return of Genomic Results to 1444 Participants Across the eMERGE3 Network
Get PDFThe goal of Electronic Medical Records and Genomics (eMERGE) Phase III Network was to return actionable sequence variants to 25,084 consenting participants from 10 different health care institutions across the United States. The purpose of this study was to evaluate system-based issues relating to the return of results (RoR) disclosure process for clinical grade research genomic tests to eMERGE3 participants
Equal Speech Protection
Get PDFPolitical speech is not special. No type of speech is. First Amendment doctrine ubiquitously claims to value speech on a hierarchy, with political speech occupying the highest and most-protected position, followed by commercial speech and speech on private matters, with low-value speech on the bottom, least-protected rung. This hierarchy is a myth. The true but hidden framework of free speech law is actually one of equal speech protection. All speech, including political speech, receives comparable protection--and that level of protection is quite moderate across the board. Specifically, the equal protection speech receives permits the state to regulate speech in order to protect a safe and informed democratic discourse. This Article explains the origins and bases of the hierarchy myth, the reasons why equal speech protection supplants the hierarchy model, and the consequences of the myth\u27s persistence despite its failure to guide free speech doctrine.
Dismantling the myth that the First Amendment embraces a hierarchy of speech protection is critical at this precarious moment in the development of free speech law, when regulating speech of all kinds is essential to fostering a healthy public sphere. By excavating a robust tradition of equal and moderate speech protection out from under the shadow of the hierarchy myth, this Article recovers the hidden social democratic theory of speech protection--a theory that is singularly suited to addressing the modern speech challenges raised by an ever- expanding digital economy and dangerously toxic political speech environment
Confronting the Racial Pay Gap
Get PDFFor several decades, a small body of legal scholarship has addressed the gender pay gap, which compares the median full-time earnings of women and men. More recently, legal scholars have begun to address the racial wealth gap, which measures racial disparities in family economic security and wealth accumulation. Yet a crucial component of both the gender pay gap and the racial wealth gap remains unaddressed in the legal literature: the pay gap between the earnings of White workers and workers of color. Today, all women average eighty-two cents to each dollar men earn, but Black and Latinx workers average only seventy-four cents on the dollar to White workers. Black and Latinx women, affected by both racial and gender pay gaps, average a mere sixty-three and fifty-five cents respectively per White men’s dollar. And while the gender pay gap has narrowed, albeit slowly over time, the racial pay gap has grown. Black and Latinx workers now earn less relative to White workers than they did in the late 1970s.
The lack of legal attention to the racial pay gap reflects a belief that to remedy the problem would take major social change to dismantle the education, criminal justice, and other systems that lead Black and Latinx workers to disproportionately hold lower paid jobs. While wide scale change may benecessary (and still insufficient) to fully close the racial pay gap, more can and should be done to narrow it now. The racial pay gap has worsened despite significant gains in educational attainment by Black and Latinx Americans. Economists have documented that between one-third and two-thirds of today’s racial pay gap cannot be attributed to known causes and is due to “unobservable” factors including discrimination. A handful of states have added the protected class of race in recent amendments to strengthen their state law versions of the federal Equal Pay Act. This Article details the scope of the racial pay gap that may be reachable through antidiscrimination law and provides new legal strategies for doing so. Yet beyond strengthening pay discrimination claims, this Article argues for tackling structural pieces of the racial pay gap even as we work toward improving those structures-—for example, by limiting the present effects on pay of racially disparate criminal justice and education systems.
Recent public reckoning from the #MeToo and Time’s Up movements has sparked renewed interest in closing the gender pay gap. The growth of the Black Lives Matter movement in the wake of the killing of George Floyd has drawn attention to the racial wealth gap as part of the legacy of White supremacy. But interest in the equally important—-and not insurmountable—-issue of closing the racial pay gap has yet to catch on. This Article begins the process of reframing to highlight how confronting the racial pay gap is an essential but overlooked piece of the zeitgeist, key to resolving the gender pay gap for women of color, the racial wealth gap, and income inequality overall
Why Can’t We Be FRANDs?: Anti-Suit Injunctions, International Comity, and International Commercial Arbitration in Standard-Essential Patent Litigation
Get PDFPicking up a smartphone to contact someone across the globe isfacilitated by technical standards like 5G. These standards allow for technological compatibility worldwide. For instance, a 5G capable device can connect to 5G networks anywhere in the world because the same 5G standard is used globally. Standards, particularly those integral to the telecommunications industry, are also highly complex and contain many patents that are necessarily infringed when the standard is implemented. To avoid rampant patent infringement, owners of these standard-essential patents (“SEPs”) are required to license them to standard implementers at fair, reasonable, and non-discriminatory (“FRAND”) rates when their patents are incorporated into a standard. Apart from that, standard setting organizations (“SSOs”) provide minimal guidance about what rates are FRAND. As a result, SEP litigation over whether a rate is FRAND has spiked.
Courts hearing FRAND cases can set global rates, but patent rights are territorial. In response to the threat of foreign courts setting rates on patents granted in their jurisdiction, some courts have issued anti-suit injunctions to prevent parties from litigating a FRAND dispute elsewhere. This rise in anti-suit injunctions has resulted in some courts turning to anti-anti-suit injunctions as a response or preemptive measure. Parties have even petitioned courts for anti-anti-anti-suit injunctions. This spiral poses a threat to international comity because these injunctions, although directed at the litigants, interfere with a foreign court’s ability to decide what to do with a matter before it. Within the FRAND context, an added danger is the potential breakdown of future technological interoperability if some parts of the world adopt different standards than others. For example, this might make some smartphones incompatible with some cellular data networks. In place of litigation, international commercial arbitration has been used with some success in FRAND disputes, but there are downsides to using arbitration alone.
This Note recommends federal courts grant anti-suit injunctions in SEP litigation only under a restrictive test, rather than maintaining the current variation by circuit. Injunctions that up the “anti” should face greater scrutiny under a stricter test with international comity guiding the decision through concrete factors outlined in the sections on nonrecognition of foreign judgments in the Restatement (Fourth) of Foreign Relations Law of the United States. The Note further suggests that Congress should codify this test, but in the event of an injunction spiral that might preclude litigation altogether, SSOs should require the parties arbitrate the dispute before experts at the World Intellectual Property Organization (“WIPO”). Together, litigation and arbitration can help preserve the interconnected and technologically compatible system currently in place around the world