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Understanding Disputes Over Digitalization: A Perspective of Cross-Border Central Bank Digital Currencies
No full textIn a rapidly digitalizing world, complex disputes arise due to technological, regulatory, and other complexities. Public and private actors—including central banks, financial institutions, tech firms, and law firms—need to understand the complexity of these disputes before determining whether and how to engage with ongoing digitalization.
Given the fundamental role of currency in the world economy, this article examines central bank digital currency (CBDC) as a pivotal case study. CBDCs, representing the digitalization of central bank money, are a novel digital form of national currency issued by central banks. Various central banks, including those of the Eurozone, Switzerland, the United Kingdom, and China, are actively exploring CBDCs. Many states, such as China, are also exploring their possible cross-border use. There have been over ten cross-border CBDC projects, reflecting early experimentation with new infrastructures and practices. Despite these developments, the multifaceted nature of disputes arising from digitalization remains a critically understudied area.
Drawing from the case of CBDCs, this article addresses a key question: how to understand the complexity of disputes over digitalization? This study applies a structured framework—analyzing social (stakeholder interests and approaches), material (subject matter and party perceptions), and temporal (timing and evolution of disputes) dimensions—to dissect these digital disputes. Through a critical analysis of these dimensions, this article offers a forward-looking approach to understanding disputes in the digital age. It contributes to both theory and practice by: (i) offering a critical analysis of the practical constraints actors face when addressing disputes stemming from digitalization, and (ii) bridging the silos of dispute settlement and digital transformation, thereby fostering a more integrated approach to governance and regulation
Don\u27t Kill the Baby! The Case for AI in Arbitration
Full text linkSince the introduction of Generative AI (GenAI) in 2022, its ability to simulate human intelligence and generate content has sparked both enthusiasm and concern. While much of the criticism focuses on AI’s potential to perpetuate bias, create emotional dissonance, displace jobs, and raise ethical questions, these concerns often overlook the practical benefits of AI, particularly in legal contexts. This article examines the integration of AI into arbitration, arguing that the Federal Arbitration Act (FAA) allows parties to contractually choose AI-driven arbitration, despite traditional reservations.
This article makes three key contributions: (1) It shifts the focus from debates over AI’s personhood to the practical aspects of incorporating AI into arbitration, asserting that AI can effectively serve as an arbitrator if both parties agree; (2) It positions arbitration as an ideal starting point for broader AI adoption in the legal field, given its flexibility and the autonomy it grants parties to define their standards of fairness; and (3) It outlines future research directions, emphasizing the importance of empirically comparing AI and human arbitration, which could lead to the development of distinct systems.
By advocating for the use of AI in arbitration, this article underscores the importance of respecting contractual autonomy and creating an environment that allows AI’s potential to be fully realized. Drawing on the insights of Judge Richard Posner, the article argues that the ethical obligations of AI in arbitration should be understood within the context of its technological strengths and the voluntary nature of arbitration agreements. Ultimately, it calls for a balanced, open-minded approach to AI in arbitration, recognizing its potential to enhance the efficiency, fairness, and flexibility of dispute resolution
Criminal Subsidiaries
Full text linkCorporate groups comprise parent companies and one or more subsidiaries, which parents use to manage liabilities, transactions, operations, and regulation. Those subsidiaries can also be used to manage criminal accountability when multiple entities within a corporate group share responsibility for a common offense. A parent, for instance, might reach a settlement with prosecutors that requires its subsidiary to plead guilty to a crime, without conviction of the parent itself—a subsidiary-only conviction (SOC). The parent will thus avoid bearing collateral consequences—such as contracting or industry bars—that would follow its own conviction. For the prosecutor, such settlements can respond to criminal law’s expressive purposes while avoiding socially unacceptable collateral consequences from parent-level conviction. This kind of settlement presents an under-considered application of entity partitioning in which adjudicated criminal liability is isolated to a subsidiary, leaving the rest of a firm’s assets unencumbered by a conviction’s collateral consequences. This criminal partitioning differs, however, from better-known private asset partitioning. That is because within a firm, entity borders tend to be more porous to criminal than to private liability. Thus, in the criminal context, partitioning occurs through ex post settlement between parents and prosecutors, rather than the ex ante and unilateral use of asset partitioning seen in the private context. After considering this extension in light of prosecutorial practice and a ten-year dataset of federal SOC settlements, this Article calls for expanded use of SOC settlements as a means for balancing competing public interests in corporate enforcement and the avoidance of social cost
Promoting and Reforming Kenya’s Customary Justice Systems in Criminal Cases
Full text linkKenya’s indigenous customary justice systems developed over time to administer African justice rooted in local community harmony. British Colonialists imposed a foreign legal system, and Kenya formally retained that system even after gaining independence in 1963. Nevertheless, ordinary Kenyans today continue to resort to customary justice systems for their legal problems, including many crimes. The 2010 Constitution requires the judiciary to promote customary justice systems because they are trustworthy and accessible. Paradoxically, though, the Constitution also forbids these customary justice systems from contravening other constitutional provisions. Therein lies the difficulty. Customary justice systems’ procedures do not always comport with the 2010 Constitution or international human rights standards. For example, the right to remain silent is foreign to and sometimes even antithetical to many customary justice systems. To reconcile this discrepancy, the Kenyan judiciary has developed policies, called the Alternative Justice Systems Policy Framework and Baseline Policy, to accommodate and recognize customary justice systems while simultaneously seeking to reform them. The judiciary’s policies emphasize education and training, hoping for voluntary compliance with the Constitution.
These policy challenges are not unique to Kenya. Many former British colonies find themselves in a similar situation, seeking to strengthen and reform their customary law systems to relieve overburdened state systems, provide greater access to justice, and promote human rights
When Eating the Rich Has Consequences: The Potential Long-Term Effects of the Inflation Reduction Act’s Drug Price Negotiation Program
Full text linkFrom Publius to Santos: Congressional Expulsion and the Enforcement of Legislative Virtue
Full text linkOn December 1, 2023, in a historic decision, the U.S. House of Representatives voted to expel Congressperson George Santos. Prior to Santos’s expulsion, only two members of the House had been expelled since the Civil War. In fact, although he was under indictment, Santos was the first member to be expelled from the House without first being convicted of a federal crime or supporting the Confederacy. Santos presented an unusual case, however. By the time that he was expelled, Santos was nationally reviled for fabricating nearly every aspect of his personal biography. Although it is difficult to know what the Founders would have made of George Santos, a major theme of James Madison’s work in The Federalist Papers was how the Constitution would ensure that lawmakers possess the character traits and intellectual capabilities necessary to govern in a republic. The threat of expulsion from Congress is a seldom used, though vital, constitutional tool for enforcing congressional virtue. This Essay delves into the text, drafting, and infrequent historical application of Article I’s Expulsion Clause. Using examples such as the “electoral pardon,” under which voters excuse a member’s known wrongdoing, this Essay explores the constitutional limits of Congress’s expulsion power. In the future, Congress may face a case where the interests of the nation conflict with the expressed electoral will of a single congressional district. In such situations, we must be mindful of the crucial distinction between arguments grounded in constitutional limits of Congress’s power, and claims based on institutional precedents or policy
Mass Accommodations: Signposts to a Hidden Jurisprudence
Full text linkIn the early years of COVID-19, our willingness to swiftly modify workplaces, classrooms, and other commons generated access at unprecedented scale. These de facto accommodations belied conventional thought about whether institutions can dismantle environments, structures, and practices known to exclude or harm. Decision-makers nationwide improvised under traditional disability law—even if unevenly—generating mass accommodations that represented tens of millions of people problem-solving, experiencing structural access and safety, and intensively collaborating on organizational design over a concerted period. This Article’s argument is two-fold. First, by applying an experiential analysis, legal and non-legal audiences may understand them as disability-informed phenomena that spanned diverse disabilities and accommodations frameworks. Second, mass accommodations signal hidden doctrines we may leverage outside the courts that bolster the role of organizational theory and other models in legal persuasion. By doing so, we decline to concede away normative gains for disability and civil rights law, nor their potential to reconfigure our political economy in the future.
The precedent mass accommodations created, even when flawed and imperfect, still points toward more expansive ways for all to describe structural exclusion and remediation. During COVID-19 two normatively important institutions—worksites and schools—generated new ground in the changes experienced at scale. In spaces for incarceration, however, pandemic policies revealed brute racial and class stratifications that, catastrophically, excluded and ravaged the lives of millions. Evaluating mass accommodations through the lenses of Universal Design theory, the Theory of Racialized Organizations, and aggregate legal approaches—at the meso-level—demonstrates how we might decenter current doctrine and methods as political constraints upon jurisprudence. Conceivably, the collective labor processes that produce “law” at the hyperlocal level may yet help institutions tackle the complex relationships among race, disability, and labor
Safe Harboring Sloppiness: The Scope of, and Available Remedies Under, Sections 363(m) and 364(e)
Full text linkThe Past as a Colonialist Resource
Full text linkOriginalism’s critics have failed to block its rise. For many jurists and legal scholars, the question is no longer whether to espouse originalism but how to espouse it. This Article argues that critics have ceded too much ground by focusing on discrediting originalism as either bad history or shoddy linguistics. To disrupt the cycle of endless “methodological” refinements and effectively address originalism’s continued popularity, critics must do two things: identify a better disciplinary analogue for originalist interpretation and advance an argument that moves beyond methods.
Anthropology can assist with both tasks. Both anthropological analysis and originalist interpretation are premised on the goal of cultural translation—that is, on rendering holistic worldviews from another time-place intelligible to the translator’s own context. Likewise, both anthropology and originalism often rely on a particular interpretive device—the Reasonable Man (or Reader)—to achieve their translational goals. This Article is the first to recognize the true goal of originalism as applied cultural translation.
But analogizing to anthropology also reveals that originalism’s greatest weakness is political and ethical rather than methodological. Pressing cultural translation into the service of state power is an inextricably colonialist endeavor: it does violence to those against whom translational insights are applied by taming and supplanting their worldviews based on racialized and gendered disparities of power. Nineteenth- and twentieth-century colonizing powers often literally used anthropological research to buttress their authority over colonized peoples. Today, originalist jurisprudence intentionally reinforces the political oppression of historically marginalized groups within the United States by magnifying the views of their historical oppressors. But whereas anthropology can exist independent of its use by political powers, originalism is inseparable from statecraft. By drawing on lessons learned in anthropology, this Article demonstrates that originalist analysis—however methodologically sound—is problematic because it uses the past as a colonialist resource
Pleading Failures in Monell Litigation
Full text linkThe doctrine of municipal liability in cases brought under 42 U.S.C. § 1983 has been extensively criticized through widespread agreement that municipal liability claims are difficult for plaintiffs to win. Commentators generally blame stringent doctrinal and pleading standards for plaintiffs’ low rates of success.
This Article reveals another important contributing factor: the poor quality of many pleadings filed on behalf of civil rights plaintiffs. We present original empirical research documenting widespread pleading failures, or omissions of basic doctrinal elements. Our research demonstrates that pleading failures are common: an analysis of the complaint in every case that resulted in a federal appellate decision in 2019 reveals that 56.5% of complaints filed by represented parties failed even to state the elements of any theory of municipal liability, let alone plead those elements sufficient to meet the demanding Iqbal pleading standard.
The poor quality of civil rights complaints, while troubling, also offers an opportunity. Given that the current Supreme Court is unlikely to revise municipal liability doctrine, advocates would do well to focus efforts on improving the quality of complaints filed on behalf of civil rights plaintiffs. To this end, we identify areas in which complaints are particularly lacking and suggest ways to improve both the overall quality of attorney work product and the environment in which civil rights lawyering takes place