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Justifying Aggression: Russia\u27s 2020 Constitutional Amendments and the Invasion of Ukraine
No full textBeyond the alluring promise of an enhanced social safety net for Russian citizens, President Vladimir Putin\u27s constitutional amendments of 2020 betrayed a distinct preoccupation with fortifying Russia\u27s international standing and crafting a new national identity. By Putin\u27s own account, these amendments were necessary to steel the country against the malevolent action of international conspirators committed to Russia\u27s downfall. As this Article posits, these specific constitutional changes systematically entrenched an exceptionalist vision of Russian sovereignty and a civilizational identity that left the country constitutionally untethered from international norms and institutions, saturated in religious fervor and visions of imperial glory, and poised for war.
Following a brief introduction, the first main part of this Article explores how enshrining constitutional supremacy, territorial integrity, and the doctrines of peaceful coexistence and noninterference sought to control the impact of international law and to revive Soviet-era legal norms used to dominate neighboring states. The second part turns to the constitutionalization of a new civilizational identity steeped in a heady if selective history of imperial entitlement, traditional values, and the protection of compatriots abroad. It argues that these provisions signaled a clear intention to break from Russia\u27s previous constitutional orientation in favor of confronting a perceived threat posed by unbridled Western ultraliberalism bent on destroying Russia\u27s national identity and security.
Unpacking how the twin ideas of sovereignty and civilizational identity have embedded themselves in Russia\u27s constitutional structure facilitates drawing a direct connection between the amended constitution and Kremlin foreign policy objectives. It further demonstrates how these principles equipped the Kremlin with constitutional succor in justifying its war of aggression against Ukraine. The Article concludes by situating the constitutional amendments within the larger trend of autocratic legalism and urging the international community to recognize the Kremlin\u27s constitutionally embedded motivations for war
Lost in the Weeds: The Federal Curtailment of Cannabis Research and Whether New Cannabis Research Law Can Clear the Smoke
No full textChild Sacrifices: The Precarity of Minors’ Autonomy and Bodily Integrity After Dobbs
No full textIn Dobbs v. Jackson Women’s Health Organization, the Supreme Court held that there is no constitutional right to abortion. The decision has had a devastating impact on people seeking abortions in many states, and it will have an even more profound effect on the rights and lives of minors. Pregnant minors face greater risks than pregnant adults when they are forced to continue a pregnancy that can harm their physical and mental health and their educational and financial futures. Very young minors are incapable of consenting to the sexual acts that result in pregnancy, but many states require even these young rape victims to sacrifice their health and well-being—and potentially their lives—for the sake of a future child. But the Dobbs opinion also calls into question other constitutional rights of minors. This Article traces the evolution of minors’ constitutional rights and the substantive due process doctrine, then examines the post-Dobbs rights of minors in four areas: (1) abortion, (2) medical decision-making, (3) minors’ parental rights, and (4) minors’ right to choose whether to marry. The Article concludes with a warning about the perils of disregarding the rights of minors solely because they have only recently been recognized. History and tradition should not be the only basis for protecting rights, particularly the rights of a population as vulnerable as minors, and especially when losing those rights gives someone else control over decisions that can irreversibly alter the course of their lives
Authoritarian Privacy
No full textPrivacy laws are traditionally associated with democracy. Yet autocracies increasingly have them. Why do governments that repress their citizens also protect their privacy? This Article answers this question through a study of China. China is a leading autocracy and the architect of a massive surveillance state. But China is also a major player in data protection, having enacted and enforced a number of laws on information privacy. To explain how this came to be, the Article first turns to several top-down objectives often said to motivate China’s privacy laws: advancing its digital economy, expanding its global influence, and protecting its national security. Although each has been a factor in China’s turn to privacy law, even together they tell only a partial story.
Central to China’s privacy turn is the party-state’s use of privacy law to shore up its legitimacy amid rampant digital abuse. China’s whiplashed transition into the digital age has given rise to significant vulnerabilities and dependencies for ordinary citizens. Through privacy law, China’s leaders have sought to interpose themselves as benevolent guardians of privacy rights against other intrusive actors—individuals, firms, even state agencies and local governments. So framed, privacy law can enhance perceptions of state performance and potentially soften criticism of the center’s own intrusions. China did not enact privacy law in spite of its surveillance state; it embraced privacy law in order to maintain it. The Article adds to our understanding of privacy law, complicates the conceptual relationship between privacy and democracy, and points towards a general theory of authoritarian privacy
Class Actions
No full textThe United States Court of Appeals for the Eleventh Circuit’s 2023 class-action decisions continued to grapple with Article III standing requirements while also demonstrating, in two decisions, the court’s longstanding generally permissive posture toward approval of class-action settlements. A significant deviation from the latter tendency is the court’s increasingly isolated position on payment of incentive awards to class representatives. Alone among the circuits, the court prohibits such payments, creating an inter-circuit conflict that seems inevitably headed to the Supreme Court. In the meantime, within the circuit, class counsel face a unique hurdle in crafting settlements and dealing with class representatives
Brave New Agency: The FTC’s Expanded Powers in the Eleventh Circuit
No full textIn Aldous Huxley’s seminal novel “Brave New World,” a futuristic society grapples with the consequences of technological advancements and the ethical dilemmas they pose. The Federal Trade Commission (FTC) finds itself in a “Brave New World” of its own, particularly in the Eleventh Circuit. The case FTC v. Simple Health Plans, LLC is a potential watershed moment, redefining the scope and authority of the FTC to impose equitable damages. It serves as a pivotal juncture, not just for the agency, but also for consumer protection laws, monopolistic businesses, and what remedies courts may provide. The decision potentially leads to harsher punishments and injunctions for monopolistic businesses engaged in “unfair or deceptive acts or practices.” It is a clarion call for a stricter interpretation of consumer protection laws, providing judges with a broader arsenal of remedies. Moreover, the penalties imposed may serve as a benchmark for future awards, deterring other companies from similar malfeasance due to the severe financial risks involved
Duties Regarding Duties
No full textCorporate directors are subject to the fiduciary duties of care and loyalty
in the discharge of their responsibilities. The demands of these duties, from
their precise contours to their application under a particular set of
circumstances, is oftentimes far from obvious.
In order to properly fulfill their duties of care and loyalty, corporate
directors necessarily depend upon corporate counsel: specialized attorneys,
whether in-house or external to the corporation, retained to advise and
represent the corporation. As attorneys, corporate counsel are themselves
subject to a wide array of professional responsibilities, ranging from the
exhortations of codes of ethics to duties the breach of which could result in a
finding of malpractice. These responsibilities can themselves be ambiguous
when brought to bear upon specific situations, and hence the advent of the field
of legal ethics, and the phenomenon of experts therein.
This Article explores the potentially perilous confluence of these two sets of
obligations in the person of a corporation’s general counsel. For it is,
ultimately, the general counsel of a corporation, that specialist of specialists,
with whom rests the duty to advise board members of their duties. This Article
articulates what this duty entails and, informed by a 2022 survey of general
counsel, sets forth suggested best practices to be adopted in order to confidently
discharge it
