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Privacy Beyond Possession: Solving the Access Conundrum in Digital Dollars
Get PDFThe advent of a retail central bank digital currency (CBDC) could reshape the US payments system. A retail CBDC would be a digital representation of the US dollar in the form of an account or token that is widely accessible to the general public. It would be a third form of US fiat money that is created and issued by the Federal Reserve and complementary to physical cash. CBDC proposals have suggested a myriad of retail CBDC design models with an overwhelming interest in a retail CBDC that either implements a centralized ledger system or some form of a distributed ledger system to process payments. The technology of a retail CBDC would enable instantaneous payments for consumers and greater transparency for government officials. Additionally, CBDC proponents are championing retail CBDC as a tool to promote financial inclusion. However, antiquated US privacy protections may be inadequate to safeguard against the potential risks to individual privacy within digital payments and consequently undermine financial inclusion. A retail CBDC system that is under the control of the Federal Reserve could bolster regulatory compliance and oversight but also exacerbate workarounds by government entities in the current US privacy framework that are concerning for individual privacy in the age of big data and dataveillance. A proper privacy framework governing retail CBDC records would alleviate risks to privacy and enhance public trust in a retail CBDC system. Refining the Privacy Act of 1974 or creating a new regulatory framework that is informed by both the Privacy Act and the impact of innovative data analytics would help balance the inherent tension between privacy and transparency of user identity and transactions within a retail CBDC system under the control of the Federal Reserve
A Fiduciary Judge\u27s Guide to Awarding Fees in Class Actions
Get PDFIt is often said that judges act as fiduciaries for the absent class members in class action litigation. If we take this seriously, how then should judges award fees to the lawyers who represent these class members? The answer is to award fees the same way rational class members would want if they could do it on their own. In this Essay, I draw on economic models and data from the market for legal representation of sophisticated clients to describe what these fee practices should look like. Although more data from sophisticated clients is no doubt needed, what we do know calls into question several fee practices that are in common use today: (1) presuming that class counsel should earn only 25 percent of any recovery, (2) reducing that percentage further if class counsel recovers more than $100 million, and (3) reducing that percentage even further if it exceeds class counsel\u27s lodestar by some multiple
POTUS and Pot: Why the President Could Not Legalize Marijuana Through Executive Action
Get PDFCould the President legalize marijuana, without waiting for Congress to act? The 2020 Presidential Election showed that this question is far from hypothetical. Seeking to capitalize on frustration with the slow pace of federal legislative reform, several presidential candidates promised they would bypass the logjam in Congress and legalize marijuana through executive action instead.
This Essay warns that such promises are both misguided and dangerous because they ignore statutory and constitutional constraints on the President’s authority to effect legal change. It explains why supporters of marijuana reform should be wary of legalizing the drug through executive action, even if that means having to wait for Congress to pass new legislation.
To be clear, this Essay is not a defense of our current federal marijuana policy. Federal marijuana policy is a mess, regardless of one’s views on legalization. But proponents of reform need to recognize that Congress made this mess, and only Congress can clean it up. Proponents of reform should resist the temptation to embrace the imperial presidency to serve their short-term policy goals, for there is much more at stake here than marijuana policy.
The Essay proceeds as follows. Section I sets the stage by discussing the growing interest in pursuing legalization via executive action. Section II then illuminates the current limits on the President’s power to legalize marijuana. Finally, Section III explains why disregarding those limits is dangerous, and why marijuana reforms should run the gauntlet that is our national lawmaking process—even if that means we are stuck with an outdated federal marijuana policy for some time
4°C
No full textIn March 2020, while the world\u27s attention was focused on the coronavirus pandemic, an international team of eighty-nine polar scientists from fifty organizations reported that Greenland and Antarctica are losing ice six times faster than they were in the 1990s. Based on satellite data, the research team concluded that if the current melting trend continues, the regions will be on track to match the \u27worst-case\u27 scenario of the Intergovernmental Panel on Climate Change (IPCC) of an extra 6.7 inches (17 centimeters) of sea-level rise by 2100. One month later, in Siberia, the small town of Verkhoyansk (67.5°N latitude) reached 100.4 degrees Fahrenheit, 32 degrees above the normal high temperature and likely the hottest temperature ever recorded in Siberia and also the hottest temperature ever recorded north of the Artic Circle, which begins at 66.5°N. All around the town, the Arctic tundra was burning. This was not an anomaly, but rather the leading edge of a trend. Throughout the Northern Hemisphere, wildlife danger is expanding northward: before enflaming the Arctic in 2020, wildfire devastated large parts of Norway, Sweden, and Scotland in the summer of 2019
Oversight Riders
Get PDFCongress has a constitutionally critical duty to gather information about how the executive branch implements the powers Congress has granted it and the funds Congress has appropriated. Yet in recent years the executive branch has systematically thwarted Congress’s powers and duties of oversight. Congressional subpoenas for testimony and documents have met with blanket refusals to comply, frequently backed by advice from the Department of Justice that executive privilege justifies withholding the information. Even when Congress holds an official in contempt for failure to comply with a congressional subpoena, the Department of Justice often does not initiate criminal sanctions. As a result, Congress has resorted to enforcing its subpoenas in civil litigation, with terrible results. Civil enforcement, if any, occurs years after the information was sought, practically eliminating the information’s practical and political value. Changes in administrations can be expected to affect the willingness of the executive branch to thwart congressional oversight, but the problem will remain until systemic reforms discourage the most egregious forms of executive evasion. To overcome this reliance on judicial enforcement of its oversight powers, Congress needs to think more creatively and aggressively. One way of doing so, which we defend in this Article, is using Congress’s powers of the purse to condition funding to agencies on their compliance with congressional oversight requests, employing what we call oversight riders. By denying funding to executive agencies’ resistance to oversight, Congress can create personal legal incentives for executive branch officials to comply. The Article concludes by considering whether other underenforced regimes, including requirements addressing political activity, ethics, and transparency, might also be protected by similar riders
What Was the Dartmouth College Case Really About?
Get PDFThis Article is the first modern work of corporation law scholarship fully examining the Dartmouth College case as it was lived and understood at the time. Earlier scholars, the author of this Article included, have relied on the case to make doctrinal and theory-of-the firm arguments about Supreme Court precedents regarding the constitutional rights of corporations. Moreover, these earlier works have primarily focused on, and found talismanic meaning, in two sentences in Marshall’s opinion:
A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence.
With this prior focus, corporate law scholars typically have viewed the importance of the Dartmouth College case as early evidence of what the founders and the jurists in that case might have thought had they been presented with a question concerning a corporation’s First Amendment rights. Supreme Court Justices in modern corporate speech cases have used Marshall’s two sentences similarly
The Evolving Technology-Augmented CourtroomBefore, During, and After the Pandemic
Get PDFEven before the COVID-19 Pandemic, technology was changing the nature of America’s courtrooms. Access to case management and e-filing data and documents coupled with electronic display of information and evidence at trial, remote appearances, electronic court records, and assistive technology for those with disabilities defined the technology-augmented trial courtroom. With the advent of the Pandemic and the need for social distancing, numerous courts moved to remote appearances, virtual hearings, and even virtual trials. This Article reviews the nature of technology-augmented courtrooms and discusses virtual hearings and trials at length, reviewing legality, technology, human factors, and public acceptance, and concludes that virtual hearings will continue after the Pandemic
Police Arbitration
Get PDFBefore punishing an officer for professional misconduct, police departments often provide the officer with an opportunity to file an appeal. In many police departments, this appeals process culminates in a hearing before an arbitrator. While numerous media reports have suggested that arbitrators regularly overturn or reduce discipline, little legal research has comprehensively examined the outcomes of police disciplinary appeals across the United States.
In order to better understand the use of arbitration in police disciplinary appeals and build on prior research, this Article draws on a dataset of 624 arbitration awards issued between 2006 and 2020 from a diverse range of law enforcement agencies. It finds that arbitrators on appeal reduced or overturned police officer discipline in 52% of these cases. In 46% of cases involving termination, arbitrators ordered police departments to rehire previously terminated officers. On average, arbitrators reduced the length of officer suspensions by approximately 49%.
Arbitrators gave several common justifications for reductions in officer discipline. Frequently, arbitrators found the original discipline to be excessive relative to the offense committed or relative to punishments received by other officers. In a somewhat smaller number of cases, arbitrators cited insufficient evidence or procedural flaws in the investigation or adjudication of the original internal disciplinary process.
This Article concludes by considering the implications of these findings for the literature on police accountability. It also considers emerging efforts in states like Minnesota and Oregon to reform police arbitration procedures in order to better balance officers’ interests in due process with the public’s interest in accountability
Why Supervise Banks? The Foundations of the American Monetary Settlement
Get PDFAdministrative agencies are generally designed to operate at arm’s length, making rules and adjudicating cases. But the banking agencies are different: they are designed to supervise. They work cooperatively with banks and their remedial powers are so extensive they rarely use them. Oversight proceeds through informal, confidential dialogue.
Today, supervision is under threat: banks oppose it, the banking agencies restrict it, and scholars misconstrue it. Recently, the critique has turned legal. Supervision’s skeptics draw on a uniform, flattened view of administrative law to argue that supervision is inconsistent with norms of due process and transparency. These arguments erode the intellectual and political foundations of supervision. They also obscure its distinguished past and deny its continued necessity.
This Article rescues supervision and recovers its historical pedigree. It argues that our current understanding of supervision is both historically and conceptually blinkered. Understanding supervision requires understanding the theory of banking motivating it and revealing the broader institutional order that depends on it. This Article terms that order the “American Monetary Settlement” (“AMS”). The AMS is designed to solve an extremely difficult governance problem—creating an elastic money supply. It uses specially chartered banks to create money and supervisors to act as outsourcers, overseeing the managers who operate banks.
Supervision is now under increasing pressure due to fundamental changes in the political economy of finance. Beginning in the 1950s, the government started to allow nonbanks to expand the money supply, devaluing the banking franchise. Then, the government weakened the link between supervision and money creation by permitting banks to engage in unrelated business activities. This transformation undermined the normative foundations of supervisory governance, fueling today’s desupervisory movement. Desupervision, in turn, cedes public power to private actors and risks endemic economic instability