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The Fighting\u27s Done, Now Pay Me: Investment Treaties, War and State Liability
Get PDFWhere major conflict erupts, major state liability follows. Sri Lanka, Zaire, Libya, and Syria have all found themselves subject to extensive liability to investors under bilateral investment treaties for harms incurred in the midst of armed conflicts raging within their borders. This Note argues that war-loss clauses, present in nearly every bilateral investment treaty, should be interpreted to create a lex specialis regime limiting investor compensation following armed conflicts. Arbitral tribunals, however, have consistently refused to apply war-loss clauses in this manner. This has lead to an over-extension of state liability to foreign investors in the wake of armed conflict. This liability has the potential to create a host of problems for states recovering from armed conflict, and this Note proposes three solutions. First, it outlines how war-loss clauses can plausibly be interpreted under the Vienna Convention on the Law of Treaties to create a special regime limiting states\u27 liability to investors for war losses. Second, it proposes that more explicit war-loss provisions be added to future bilateral investment treaties. Last, it outlines the contours of a multilateral instrument that could supersede the application of bilateral investment treaties in times of armed conflict
A Tribe Divided: The Threat of the Loss of Tribal Autonomy and Culture Facing Transnational Tribes on the Northern and Southern Borders of the United States
Get PDFIndigenous peoples in the northern and southwestern regions of the United States face challenges to the preservation of their cultures, economies, governments, and family relations as a result of the international borders that have bisected their traditional lands. While there is a history of treatymaking and governmental policy attempting to address these issues, the lack of an effective solution and concrete. border policy for tribe members in these regions leaves them without recourse. Some scholars suggest universal US citizenship for tribe members, others suggest tribe-specific legislation, and some even suggest that the tribes pursue litigation against the United States to resolve their woes at the borders. While each of these solutions have their merits, there are serious flaws that will likely prevent their implementation or meaningful effect. This Note will examine the history of treatymaking and border issues for these tribes and some of the primary solutions various scholars have proposed. After analyzing the strengths and weaknesses of these solutions, this Note will suggest that a new, polycentric governance system over the tribal lands be instituted to ensure that the collective tribal rights will be effectively balanced with the international government interests in play...
This Note seeks to make sense of the issues faced by some tribes on both the northern and southern borders of the United States and to analyze potential solutions to these issues. The Note will first lay out a background of the most relevant histories of a few, select tribes in those regions and the treaties and laws which were instituted in\u27 connection to those tribes and the borders, as well as the issues these treaties and laws have created. The experiences of these tribes do not encompass the totality of border tribe experiences. Rather, they serve as a broad look at problems generally consistent with border tribes. In order to simplify and use these examples effectively, this overview will be broadly cabined into cultural, economic, and political issues, which will then be analyzed by looking at (1) various solutions proposed in previous scholarship, (2) solutions used with specific tribes, and (3) solutions used internationally. Finally, the Note will propose a polycentric governance counsel as the best solution to the issues the current geographic borders present to the northern and southern tribes and will analyze the impact of the proposed Tribal Council in light of the potential cultural, economic, and political implications of such a solution
Regulating Data Breaches: A Data Superfund Statute
Get PDFCollecting and processing large amounts of personal data has become a fundamental feature of the modern economy. Personal data, combined with good data analytics, are valuable to businesses as they can provide highly detailed information about individual preferences and behaviors. This data collection can also be valuable to the consumer as it generates innovative products and digital platforms. The era of big data promises great rewards, but it is not without its costs. Data breaches, or the release of personal data into unwanted hands, are pervasive and increasingly massive in scale. Despite the personal privacy harm caused by data breaches, businesses can largely externalize the costs of these breaches to the public. While privacy harm is undoubtedly an important issue, the release of data generates arguably more significant social costs. This Note argues that policy makers should view the unwanted release of data as a form of pollution that dilutes critical public goods. As such, an effective regulatory solution to data breaches should mirror the current regulatory approaches to environmental pollution. Like the physical environment, the data environment is a complex and highly interconnected system; accordingly, there is unlikely to be a single best way to regulate it. Thus far, the United States has approached data regulation in a stepwise and targeted fashion, much like environmental regulation. This approach has some advantages, but there is a pressing need for more comprehensive regulation. Current proposals point to omnibus privacy laws like the European Union’s General Data Protection Regulation and the California Consumer Privacy Act as a solution. However, these regulations are ultimately privacy focused and impose high costs on the data economy. To balance these concerns, this Note proposes that Congress enact federal legislation implementing a data protection statute modeled after the Comprehensive Environmental Response, Compensation, and Liability Act
Confronting the Biased Algorithm: The Danger of Admitting Facial Recognition Technology Results in the Courtroom
Get PDFFrom unlocking an iPhone to Facebook “tags,” facial recognition technology has become increasingly commonplace in modern society. In the wake of the Black Lives Matter movement and call for police reform in the United States, it is important now more than ever to consider the implications of law enforcement’s use of facial recognition technology. A study from the National Institute of Standards and Technology found that facial recognition algorithms generated higher rates of false positives for Black faces—sometimes up to one hundred times more false identifications—than white faces. Given the embedded bias of this technology and its increased prevalence, the lack of federal regulation of facial recognition technology and its uses by law enforcement are alarming. This Note explores issues that arise with law enforcement’s use of facial recognition technology and how results from the technology should be treated in the criminal justice system.
This Note cautions against admitting results from facial recognition technology into evidence in criminal trials based on the current state of the industry and the technology. Further, if facial recognition evidence is admitted, this Note argues that defendants should have access to the software’s source code to meaningfully challenge the evidence presented against them under the confrontation clause of the US Constitution. While this Note recognizes developers’ interest in protecting trade secrets, it nevertheless recommends that judges balance these interests with those of defendants and make case-by-case decisions about how to protect developers’ information without blocking defendants’ access to the software
Chevron is a Phoenix
Get PDFJudicial deference to agency interpretations of their own statutes is a foundational principle of the administrative state. It recognizes that Congress has the need and desire to delegate the details of regulatory policy to agencies rather than specify those details or default to judicial determinations. It also recognizes that interpretation under regulatory statutes is intertwined with implementation of those statutes. Prior to the famous decision in Chevron, the Supreme Court had long regarded judicial deference as a foundational principle of administrative law. It grew up with the administrative state alongside other foundational administrative law principles. In Chevron, the Court gave judicial deference a particular articulation and set of express justifications that made the principle seem new and bold-and ultimately set it on a path to become convoluted and vulnerable. But judicial deference is no less a foundational principle because Chevron took on a life of its own. And foundational principles-particularly those that help to maintain balance among the branches-do not simply go away. They change and reappear in the law. The Court can try to kill Chevron, but judicial deference will find its way back to administrative law
Pure Privacy
No full textIn 1890, Samuel Warren and Louis Brandeis began a storied legal tradition of trying to conceptualize privacy. Since that time, privacy\u27s appeal has grown beyond those authors\u27 wildest expectations, but its essence remains elusive. One of the rare points of agreement in boisterous academic privacy debates is that there is no consensus on what privacy means. The modern trend is to embrace the ambiguity. Unable to settle on boundaries, scholars welcome a broad array of interests into an expanding theoretical framework. As a result, privacy is invoked in debates about COVID-19 contact tracing, police body cameras, marriage equality, facial recognition, access to contraception, loud neighbors, telemarketing calls, and on and on. This pluralistic turn has made privacy popular, but this popularity comes at a cost. Lacking precision, ubiquitous invocations of privacy tend to cloud rather than clarify, raising the temperature of academic and policy debates while generating little light. This Article proposes a baseline definition of privacy to anchor legal discourse. The definition responds to privacy skeptics by identifying a core of pure privacy that can and should be protected. But it also pushes back on privacy pluralists by insisting on the need for precision. In a post-pandemic world, policymakers face powerful temptations to override longstanding privacy protections and countervailing pressures to abandon lifesaving policies in the face of vigorous privacy objections. Precisely identifying what is at stake in these debates can help to clarify the difficult choices that will shape the future
Absolutist Admissibility at the ICC: Revalidating Authentic Domestic Investigations
Get PDFCurrent jurisprudential trends empower the International Criminal Court (ICC) Prosecutor to override domestic investigative authorities in a manner that violates the letter and spirit of the Rome Statute. Sovereign states have primary responsibility to document, investigate and prevent atrocity crimes. Yet, current ICC practice subverts domestic enforcement efforts. No provision of the Rome Statute permits the Office of the Prosecutor (OTP) to substitute its unfettered judgment over the good-faith discretion of domestic prosecutors. ICC judges have created de facto institutional jurisdictional primacy by relying upon mere assertions regarding the insufficiency of domestic efforts. This trend is particularly problematic at the liminal phase from the preliminary examination (PE) to an authorised investigation because OTP policy preferences supersede good-faith domestic investigations and prosecutorial assessments. Juridical templates for assessing admissibility have been extrapolated from later phases of particularised cases into the PE phase. Current practice effectively eliminates sovereign prosecutorial discretion. Good-faith exercises of domestic prosecutorial discretion should not be constrained by post hoc Court-created straitjackets. This article dissects this problematic arc and proffers a model for harmonising domestic investigative efforts within the structure and intent of the Rome Statute. Its conclusions recommend reforms to ameliorate a foreseeable crisis of cooperation that could cripple an unreformed Court
Corporate Personhood and Limited Sovereignty
Get PDFThis Article, written for a symposium celebrating the work of Professor Margaret Blair, examines how corporate rights jurisprudence helped to shape the corporate form in the United States during the nineteenth century. It argues that as the corporate form became popular because of the way it facilitated capital lock-in, perpetual succession, and provided other favorable characteristics related to legal personality that separated the corporation from its participants, the Supreme Court provided crucial reinforcement of these entity features by recognizing corporations as rights-bearing legal persons separate from the government. Although the legal personality of corporations is a distinct concept from their constitutional treatment, the Court’s nineteenth-century rulings bolstered key features created by corporate law and simultaneously situated the corporation as subordinate to the state in a system of federalism. And, finally, the Article suggests that the balance of power struck in the first century of Supreme Court jurisprudence on corporate rights has been eroded in the modern era. The Supreme Court’s failure to develop a consistent approach to corporate rights questions and its tendency to reason based on views of corporations as associations of persons have exposed a significant flaw in the Court’s evolving corporate personhood jurisprudence: it lacks a limiting principle
