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Sovereignty 2.0
Get PDFDigital sovereignty-the exercise of control over the internet-is the ambition of the world\u27s leaders, from Australia to Zimbabwe, seen as a bulwark against both foreign states and foreign corporations. Governments have resoundingly answered first-generation internet law questions of who, if anyone, should regulate the internet. The answer: they all will. Governments now confront second-generation questions--not whether, but how to regulate the internet. This Article argues that digital sovereignty is simultaneously a necessary incident of democratic governance and democracy\u27s dreaded antagonist. As international law scholar Louis Henkin taught, sovereignty can insulate a government\u27s worst ills from foreign intrusion. Assertions of digital sovereignty, in particular, are often double-edged--useful both to protect citizens and to control them. Digital sovereignty can magnify the government\u27s powers by making legible behaviors that were previously invisible to the state. Thus, the same rule can be used to safeguard or repress-a feature that legislators across the Global North and South should anticipate through careful checks and balances
Security Council Resolutions and the Double Function of Explanation of Votes
Get PDFUN Security Council resolutions are not always clear: they sometimes need to be interpreted. Members of the Security Council may make statements in connection with their votes, termed explanation of votes. Explanation of votes may have at least two functions. First, they may contribute to the formation of customary international law. Secondly, they can be used as a means for interpreting Security Council resolutions in relation to a specific situation or dispute. The present Article examines different trajectories of conversations to show how Security Council resolutions and explanation of votes may protect the status quo in some instances and act as agents of change in others
A World Without Prosecutors
No full textBennett Capers\u27 article Against Prosecutors challenges us to imagine a world where we turn away from prosecution as we know it, and shift power from prosecutors to the people they purport to represent. In this world, crime victims decide whether to prosecute their own cases, and public prosecutors play a subsidiary role, taking primary responsibility only for cases where the state is truly a victim (such as tax fraud). This leaves a large category of cases - victimless crimes - without any prosecutor at all; Capers singles out drug offenses as the biggest examples. Without prosecutors championing these and analogous cases, there would be far fewer prosecutions, quite possibly, reducing mass incarceration. Capers joins a long line of authors seeking to attack mass incarceration by reducing the role of prosecutors. I agree with these authors that we should dramatically shrink the footprint of American criminal law and ending the war on drugs is a good place to start. But while Capers styles his proposal as a [r]adical change, I find the focus on prosecutors in this context decidedly indirect. This follows from my distinct diagnosis of the drivers of criminal justice policy. While Capers acknowledges that judges, legislators, [and] police play [a] role in the criminal justice system, he echoes a dominant theme in legal scholarship that their power pales in comparison to that of prosecutors
Current Regulatory Challenges in Consumer Credit Scoring Using Alternative Data-Driven Methodologies
Get PDFCredit is a crucial determinant of financial success for most US consumers, but not all consumers can access it. This financial exclusion is partially due to traditional credit-risk scoring and approval processes that cannot assess the creditworthiness of “credit invisible” or “thin file” consumers––that is, consumers who do not have enough traditional data depicting their financial payment history. Consequently, some consumer-reporting agencies and lenders turn to alternative data credit-scoring systems as a way to increase financial inclusion. The enormous complexity of these alternative consumer credit-scoring systems, however, raises significant accuracy and transparency issues—most of which stem from their secret, legally protected status—as well as heightened concerns over the use of discriminatory and biased scoring practices using nontraditional behavioral data. If these issues are not addressed, alternative data-driven credit-scoring systems can potentially amplify transparency and discrimination issues, preventing consumers from understanding the factors that impact their credit scores. At the same time, they can position underprivileged groups to face increased discrimination in terms of both accessing credit and receiving favorable interest rates.
This Note proposes four regulatory solutions and suggests enhancements to the Model Fairness and Transparency in Credit Scoring Act developed by legal and technology scholars Hurley and Adebayo. The current regulatory framework can better address discrimination by requiring lenders to disclose how they define “creditworthiness” so that consumers can gain a better understanding of the standards to which they are being held. It can also push lenders to foster more appropriate credit standards. Moreover, federal legislation is needed to curtail or prohibit the use of nontraditional behavioral data, especially data derived from a consumer’s social networks, which can unfairly penalize consumers for their social or cultural associations. If regulatory agencies should regulate these firms under the presumption that behavioral data is inherently discriminatory until proven otherwise. Finally, regulators should seek to incentivize firms using alternative credit scoring methodologies to seek no-action letters
We Need a Cole Memorandum for Magic Mushrooms
Get PDFIn fall 2020, as the nation elected Joe Biden to be our Forty-Sixth President, Oregon voters also passed a noteworthy new drug law reform. Known as Measure 109, Oregon’s path-breaking law legalizes the use of psilocybin, a hallucinogenic substance found in magic mushrooms. Measure 109 is designed to unlock the therapeutic potential of psilocybin, which advocates tout as an effective and safe treatment for depression and other psychological conditions.
Given the burgeoning interest in psychedelics, many people are excited to see how Oregon’s psilocybin experiment pans out. But at this point, it remains unclear whether the experiment will even get off the ground. The main reason: we still do not know how the new Biden Administration will respond to Measure 109.
Federal law currently takes a very dim view of psilocybin. The federal Controlled Substances Act (CSA) classifies the drug as a Schedule I controlled substance, making it unlawful to possess, manufacture, or distribute outside the narrow confines of a federally approved clinical research trial. Federal law also proscribes a staggering array of activities related to supplying and using psilocybin, such as providing space where people can consume the drug. Federal law thus casts a long and dark shadow over Oregon’s road to reform and anyone taking a trip on that road
Putting Lon Fuller to Work in the Trenches
No full textAt the heart of Cass Sunstein and Adrian Vermeule’s insightful and important book, Law and the Leviathan: Redeeming the Administrative State, is a claim that a set of rule-of-law principles underlie and unify disparate doctrines in administrative law. Sunstein and Vermeule offer their interpretive account of administrative law not only to explicate the conceptual foundations of diverse doctrines, but also because they believe this account helps to legitimate the administrative state. The book’s ultimate suggestion is that because administrative law reflects rule-of-law principles in sufficient measure, the administrative actions it governs can be “efficacious as law,” not merely arbitrary commands
Efficient Ethical Principles for Making Fatal Choices
Get PDFResource allocations of all kinds inevitably encounter financial constraints, making it infeasible to make financially unbounded commitments. Such resource constraints arise in almost all health and safety risk contexts, which has led to a regulatory oversight process to ascertain whether the expected benefits of major regulations outweigh the costs. The economic approach to monetizing health and safety risks is well established and is based on the value of a statistical life (“VSL”). Government agencies use these values reflecting attitudes toward small changes in risk to monetize the largest benefit component of regulations--that dealing with mortality risks. This procedure consequently bases the benefit value on the individual’s own rate of tradeoff between risk and money and in effect creates a quasi-market approach to public policy assessment. Whereas tort liability awards are personalized to reflect the particular circumstances of the case, government policies generally rely on average valuations of mortality risk across broad worker groups. The COVID-19 pandemic has highlighted the potential role of resource constraints in the distribution of medical resources, particularly with respect to the provision of ventilators. The age-based allocation of treatment advocated by some medical ethicists violates age discrimination laws, is based on their own ethical judgments, and is divorced from consideration of private willingness-to-pay values or other possible economic efficiency criteria. A more constructive approach than the lifeboat and triage scenarios that are often discussed by medical ethicists is to consider ex ante how people would choose to provide for treatments when facing a prospective risk, making the task equivalent to that of valuing and saving statistical lives. Continued high valuations of risk reductions even by those who are old provides a rationale for more protective practices and more forward-thinking medical decisions than those advocated by some bioethicists
Why the Corporation Locks in Financial Capital but the Partnership Does Not
Get PDFEach partner in an at-will partnership can obtain a cash payout of his interest at any time. The corporation, by contrast, locks in shareholder capital, denying general payout rights to shareholders unless the charter states otherwise. What explains this difference? This Article argues that partner payout rights reduce the costs of two other characteristics of the partnership: the non-transferability of partner control rights, and the possibility for partnerships to be formed inadvertently. While these characteristics serve valuable functions, they can introduce a bilateral-monopoly problem and a special freezeout hazard unless each partner can force the firm to cash out his interest. The corporation lacks these characteristics: shares are freely transferable, and no one can commit capital to a corporation without intending to do so. Therefore, in most corporations the costs of shareholder payout rights—which would include the cash-raising burden and a hazard of appraisal arbitrage-—would exceed the benefits
Regulating Social Media in the Global South
Get PDFIn recent years, the disinformation crisis has made regulating social media platforms a necessity. The consequences of disinformation campaigns are not only limited to election interferences or political debates, but have also included fatal consequences. In response, scholars have generally focused on regulating social media companies in the United States without paying much attention to these companies’ global impact, particularly in the Global South. Lost in the quest to fight disinformation is addressing the social media companies’ neglect of consumer rights in the Global South.
Countries in the Global North, such as the United States, have the power to regulate social media companies should they choose to do so. However, the current power asymmetry between major social media companies and countries in the Global South limits the ability of many of such countries to have any meaningful bargaining power to advocate for their citizens’ consumer rights and their ability to manage misinformation campaigns in their sovereign territories. In some countries, it is even unclear if there is any political will from their respective government to advocate for consumer rights. This problem will not be resolved by relying on corporate social responsibility or corporate self-governance. Thus, this Article argues that unless countries in the Global South act collectively, they should not expect any major change from powerful social media companies in handling misinformation in their countries or promoting their citizens’ consumer rights. Regional treaties among countries, as a form of collective action, could push social media companies to be more attentive to their actions outside the Global North and bear responsibility in a transnational space. Ultimately, collective action in the Global South could inspire a global coalition and promote global accountability
