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Criminal Injustice
Get PDFAs its title suggests, Why the Innocent Plead Guilty and the Guilty Go Free is a wide-ranging critique of our criminal justice system. While it is hardly the first, it offers a number of distinctive insights. Most of the now voluminous work on this topic is written by scholars, policy analysts, or journalists and is addressed to the legislature or the executive. This certainly makes sense. External observers are well positioned to critique a system that punishes without purpose, and the major determinants of its dysfunction are the legislature that enacts the criminal law and the executive that enforces it. In contrast, the author of this book, Jed S. Rakoff, is a sitting federal judge, and he provides a specifically judicial perspective. This appears in at least two of the book’s most notable features: its juxtaposition of its subject matter and its discussion of the way that general trends in our criminal law impact the work of judges
The Path to Employee Status for College Athletes Post-Alston
Get PDFCollege athletics are in a state of flux following the Supreme Court’s decision in NCAA v. Alston. While student athletes can now earn money from their name image and likeness (NIL) through endorsement deals, the NCAA and its member schools can still exploit college athletes to earn billions of dollars. To remedy this injustice, courts should classify student athletes as employees under the Federal Labor Standards Act (FLSA) to compensate these students for their work. Whether student athletes should be eligible for minimum wage and employment benefits has been a hot-button topic in the legal community for many years. Fortunately, the Alston decision and subsequent NIL policy changes give student athletes their strongest argument to be classified as an employee to date.
Because of Alston’s effects on the legal status of NIL, courts should classify student athletes as employees—not independent contractors—under the various employment tests, and thus grant student athletes FLSA protections. Employee classification for student athletes would require NCAA member schools to alter their business models in order to compensate student athletes for the labor they provide; the NCAA has no other option but to subsidize schools that cannot meet this new expense. If the NCAA fails to do so, other amateur sports organizations may soon take its place
Finding the Boundaries of Equitable Disgorgement
Get PDFThe disgorgement of “ill-gotten gains” is a significant mechanism for enforcing the securities laws. By compelling a violator of the securities laws to forfeit their illegal proceeds, disgorgement serves as a strong deterrent for securities fraud and an important method by which investors are compensated for unjust losses in the market—and today accounts for the recovery of billions of dollars annually. Despite its importance, commentators in recent years began to call into question theavailability of the disgorgement remedy for the SEC. The SEC purses disgorgement under the agency’s grant for seeking equitable relief for the benefit of investors; however, courts have arguably applied disgorgement in a manner that renders it a penalty—and thus beyond the scope of SEC enforcement.
In June 2020, the Supreme Court stepped in to provide clarity as to the future of disgorgement as an equitable remedy. In Liu v. SEC, the Court held that while disgorgement remains available for the SEC, a disgorgement award cannot exceed the net proceeds that result from a violation of the securities laws. More specifically, the Court took issue with three instances in which lower court applications of disgorgement had tested the line between equity and penalty. First was the common practice of returning disgorged funds to the Treasury rather than to harmed investors. Second was through the imposition of joint-and-several liability, and third was the practice of denying cost and expense deductions from disgorgement awards.
This Note proposes a method for navigating the boundary of equitable disgorgement. In particular, this Note argues that disgorged funds can be equitably returned to the Treasury to the extent that the method of remittance reflects a focus on investor compensation and an expansive view of “benefitting investors.” Further, joint-and-several liability may be appropriate in the context of a fraudster’s claim toproceeds held by another; and finally, equity requires that legitimate deductions include more than legitimate costs and expenses, but the subsequent disposal of profits as well. This approach to applying disgorgement can result in an equitable imposition of the remedy and the continued efficacy of an important enforcement mechanism for policing securities markets
Your Body, Your Cells? Direct-to-Consumer Marketing of Autologous Stem Cell Therapies in the United States, Japan, and Australia
Get PDFStem cell tourism has relocated; patients in search of stem cell therapies to treat nearly any disease can find clinics selling miracle cures without traveling beyond their national borders. Businesses marketing unproven autologous stem cell therapies are now plentiful in highly regulated, wealthy countries, including the United States, Japan, and Australia. Despite regulatory oversight of stem cell therapies and strong support for scientific innovation in these countries, the internet and social media have facilitated the rapid growth and success of a new industry selling unproven treatments directly to consumers. Clinics selling unproven autologous stem cell therapies have succeeded by developing persuasive strategies to appear legitimate and by promoting the perception that therapies using your own cells are inherently safer and give patients more ownership and control over their treatment. Despite recent reforms in these countries, national political tensions have rendered these reforms porous, creating new loopholes that commercial clinics can exploit. As such, the World Health Organization needs to implement an international solution that holds member states accountable to meaningfully protect patients and to ensure that stem cells can deliver on their therapeutic potential
Criminal Justice is Local: Why States Disregard Universal Jurisdiction for Human Rights Abuses
Get PDFA German court recently convicted a minor Syrian official of abuses committed in Syria\u27s civil war. The case was announced with fanfare but has since stirred no interest. Nor should this be surprising. The world has been here before. There was intense excitement in 1998, when British authorities arrested Augusto Pinochet, the former president of Chile, for human rights abuses committed in Chile. It was taken at the time as vindicating the doctrine that the worst human rights abuses fall under universal jurisdiction, allowing any state to prosecute, even for crimes against foreign nationals on foreign territory. As generally acknowledged today, this watershed produced barely a trickle of consequences. Notably, no former head of state has been prosecuted by another state under this rubric.
Commentators have remarked upon the disappointing results but not offered much to account for them. This Article is the first to address this puzzle by situating universal jurisdiction, as a technical doctrine, in the context of its broader impulse, sometimes called transnational justice -or previously, cosmopolitan justice. The underlying claim is that otherwise rivalrous nation-states can and should affirm a broader commonality in prosecuting offenses universally acknowledged to be crimes against humanity. Although the idea has inspired human rights activists, it has failed to engage prosecutors.
In analyzing the resulting pattern, this Article makes two central claims. First, the recurring failures of transnational justice cannot be explained by the project\u27s novelty. Centuries ago, the most prominent Enlightenment thinkers endorsed a version of cosmopolitan justice. It was later advocated as a doctrine that might justify interstate prosecutions within the United States. Such doctrines have never been embraced, however, by courts or even by prosecutors
The Regulation of Foreign Platforms
Get PDFIn August 2020, the Trump Administration issued twin executive orders banning tech platforms TikTok and WeChat from the United States. These were not the first actions taken by the Trump Administration against Chinese tech platforms. But more than any other, the ban on TikTok sparked immediate outrage, confusion, and criticism.
This Article offers a new framework for thinking about national security restrictions on foreign tech platforms. A growing body of scholarship draws on principles from regulated industries, infrastructure industries, and public utilities to show how the regulation of tech platforms is not only viable but also has significant precedent and pedigree. Firms in infrastructure sectors-banking, communications, transportation, and energy-have long been subject to distinct and comprehensive regulatory regimes because they raise political- economy concerns distinct from those of ordinary tradable goods.
In many of these sectors, there is also a long history of legal restrictions on the foreign ownership of, control of, and influence over platforms. This may be surprising given the contours of the contemporary tech-platform debate. Tech neoliberals object to placing any restrictions on foreign tech platforms because regulations would threaten the open internet. National security technocrats advocate for a case-by-case assessment of dangers, narrowly tailored mitigation measures, and audits to ensure compliance. Both of these dominant paradigms suffer from a variety of conceptual and practical problems, and neither takes foreign tech platforms seriously as platforms, akin to platforms in other sectors.
This Article recovers the history of restrictions on foreign platforms in traditional regulated industries, critiques the dominant paradigms in the debate over foreign tech platforms, and offers an alternative: the platform-utilities paradigm. The platform-utilities approach recognizes that the regulation of platforms is important and legitimate given their distinctive political economy. Taking lessons and strategies from the history of platform restrictions, it suggests focusing on sectors before specific firms and applying structural separations rather than complex formulas for preventing national security harms. The platform-utilities approach would also require efforts at international interconnection and domestic public investments. The Article concludes by revisiting the case of TikTok with these lessons in mind
Equality in the Streets: Using Proportionality Analysis to Regulate Street Policing
Get PDFThe racially disparate impact and individual and collective costs of stop and frisk, misdemeanor arrests, and pretextual traffic stops have been well documented. Less widely noticed is the contrast between Supreme Court case law permitting these practices and the Court\u27s recent tendency to strictly regulate technologically enhanced searches that occur outside the street policing setting and that--coincidentally or not--happen to be more likely to affect the middle class. If, as the Court has indicated, electronic tracking and searches of digital records require probable cause that evidence of crime will be found, stops and frisks should also require probable cause that a crime has been committed (in the case of stops) or that evidence of crime will be found (in the case of post-detention searches). This equalization of regulatory regimes not only fits general notions of fairness. It is also mandated by the Fourth Amendment\u27s Reasonableness Clause and the Court\u27s cases construing it, which endorse a proportionality principle that requires that the justification for a search or seizure be roughly proportionate to its intrusiveness
Time to Repay or Time to Delay? The Effect of Having More Time Before a Payday Loan Is Due
Get PDFWe examine the effect of state laws on minimum payday loan durations that give some borrowers an additional pay cycle to repay their initial loan with no other changes to contract terms. Neoclassical models predict this “grace period” would reduce borrowers’ need for costly loan rollovers. However, in reality, borrowers’ repayment behavior with grace periods is very similar to borrowers with shorter loans, merely pushed out a few weeks. Potential explanations include heuristic repayment decisions and naïve present focus. A calibrated model suggests that present-focused borrowers get less than one-half of the benefit from a grace period that time-consistent borrowers would
Policing the Police: Personnel Management and Police Misconduct
Get PDFPolice misconduct is at the top of the public policy agenda, but there is surprisingly little understanding of how police personnel management policies affect police misconduct. Police-civilian interactions in large jurisdictions are, in principle at least, highly regulated. But these regulations are at least partially counteracted by union contracts and civil service regulations that constrain discipline and other personnel decisions, thereby limiting a city’s ability to manage its police force. This Essay analyzes police personnel management by bringing forth evidence from a variety of data sources on police personnel practices as well as integrating an existing, but relatively siloed, literature on police misconduct. The empirical findings that emerge are as follows: (1) policing is a surprisingly secure, well-paid job with little turnover prior to retirement age; (2) inexperienced police officers are, all else equal, more likely to commit misconduct and, at the same time, more likely to receive high-risk assignments; and (3) bad cops are a serious problem, are identifiable, and are rarely removed or disciplined. Taken together, these facts suggest that attempts to regulate police conduct directly or through civil rights litigation are impeded by the inability of those who supervise police to control individual officers through assignments, discipline, and removal. The nexus of compensation, seniority, promotion, discipline, and pension policies that characterize much police personnel management cannot be rationalized under traditional labor and employment contract analysis. Existing compensation and pension policies could be rationalized, however, if supervisors were empowered to manage police through assignments, penalties, and promotion
Courts Without Court
Get PDFWhat role does the physical courthouse play in the administration of criminal justice? This Article uses recent experiments with virtual courts to reimagine a future without criminal courthouses at the center. The key insight of this Article is to reveal how integral physical courts are to carceral control and how the rise of virtual courts helps to decenter power away from judges. This Article examines the effects of online courts on defendants, lawyers, judges, witnesses, victims, and courthouse officials and offers a framework for a better and less court-centered future. By studying post-COVID-19 disruptions around traditional conceptions of place, time, equality, accountability, and trial practice, this Article identifies how legal power can be shifted away from the courts and into the community