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Bankrupting the Matrix: DAOs and the Code
Full text linkThe utilization of the novel Decentralized Autonomous Organization (“DAO”) structure to conduct business activity creates substantial challenges for the Bankruptcy Code (the “Code”). The characteristics of this unregulated, extralegal entity, built entirely on a blockchain and controlled by anonymous members through digital tokens, provides endless opportunities to avoid legal enforcement and exploit the Code. While the Code has provisions to apply to both individuals and organized actors, such as partnerships and corporations, neither DAOs nor their individual token holders fit neatly into these molds. When a DAO, or a DAO token holder, eventually faces bankruptcy, the current state of the Code and courts will be wholly unprepared for the chaotic fallout.
This Comment analyzes issues in potential DAO bankruptcies and proposes how the Code and courts must adapt to this new financial technology to avoid institutional failure. This Comment first explains the DAO structure while exploring the current DAO legal landscape, including classifications of membership tokens as either securities or digital assets. Then, this Comment discusses whether a DAO could even file for bankruptcy, and considers what that process may entail. Next, this Comment examines specific DAO-related issues in bankruptcy pertaining to service, liability, transfers, and property. Finally, this Comment considers the bankruptcy challenges that DAOs must overcome when registered in various entity forms
How American Sports Leagues Can Respond to the Rise of Sovereign Wealth Funds
Full text linkThis Comment explores the transformative impact of well-funded Middle Eastern sports leagues on the global landscape of professional sports. Fueled by substantial financial support from sovereign wealth funds, these leagues have raised concerns about the possibility that domestic American players may choose to leave their current league in favor of one of the opportunities for more lucrative salaries overseas. The rise of LIV Golf catalyzes these discussions. This Comment also delves into how American sports leagues may respond by potentially allowing players to have equity stakes, engage in sponsorships with gambling websites, and participate other revenue-sharing arrangements. The potential corporate governance issues stemming from such responses are also examined, highlighting the intricate balance of power within the industry and its far-reaching public policy and economic implications
Learning Law in Elementary and High School: Innovating Civics Education for a More Empowered Citizenry
Full text linkA principal objective of the public school system in a democracy is to promote societal cohesion by way of preparing students for civic engagement. There exists a founding belief that a democratic nation ought to be composed of educated activists, run by innovators, and kept in check by involved citizens. For, indisputably, the democratic experiment—our values, our institutions—can only be upheld anew with each generation on the backs of critique, reinvention, and reinvigoration. But, as so many have mentioned when discussing the civics education paradigm, the increase in educational opportunities and the marked expansion of our school system has not translated into higher numbers of “citizens”—higher levels of civic knowledge and youth participation. Here, we offer a partial solution addressing substantive improvements to the civics paradigm. We argue for augmenting the current learning structure with a push towards learning law young, or else endowing children with a working knowledge of law and its methodologies. To learn law young is to approach and understand the values, rights, duties, obligations, and American questions of citizenship from a different perspective than that currently held in civics classroom, one that is at once more complex and functional. One learns by interrogating constitutional questions underpinning our civic institutions, considering reasoning behind ideological arguments, all while garnering critical analytical skills now exclusively at the disposal of the law student. This is about teaching a new way of thinking, a way of thinking necessary for every citizen today, a way that is currently not routine. The objective of this paper is to obviate the need—and extoll the benefits—of integrating law learning into childhood civics education
Bigtechs and the Emergence of New Systemically Important Financial Institutions: Lessons from the Chinese Experience
Full text linkOver the past two decades, the emergence of giant technology firms (Bigtechs) has disrupted the traditional way that financial markets operate. These technology giants have leveraged network effects, massive amounts of data, and extensive customer bases to expand into the financial sector and rapidly achieve economies of scale and scope. The expansion of Bigtechs into finance has reinforced the pre-existing trends of digitalization and datafication in finance, which has evolved into a new era of the platformization. With a substantial presence in financial markets, the development of digital finance platforms has enormous potential for enhancing financial inclusion, efficiency and sustainable development. Despite these benefits, there are also many issues and risks in relation to their involvement in financial services, such as the emergence of new “too-big-to-fail” and “too-connected-to-fail” problems and the development of new systemically important financial institutions (SIFIs). In this context, the question is how policymakers and regulators, along with industry and consumers, can effectively leverage the benefits of the platformization of finance while mitigating its risks and negative impacts.
This article focuses on the experience and lessons learned from China, in particular, as it has been a pioneer in the platformization of finance. As the potential problems arising from Bigtechs’ market dominance and economies of scale have become increasingly prominent, they have become the focus of a multi-pronged response from the Chinese government, particularly from the second half of 2020. In the context of digital finance, risks involved in platform-based and highly interconnected financial activities are being addressed via multiple areas of law, including finance, competition and antitrust, data protection and cybersecurity. Based on the Chinese experience, the broad cross-sectoral and rapidly evolving nature of Bigtech businesses requires a reconsideration of the complex interaction between different government policies and regulatory objectives.
Drawing from the lessons of China’s experience, this article frames a number of strategies and recommendations for other jurisdictions that are exploring ways to regulate the emergence of the platformization of finance. Firstly, due to the rapidly evolving nature of Bigtech businesses, it is important to develop regulatory mechanisms that allow for timely review and adaptation to facilitate understanding of innovative financial services before risk events occur. Secondly, the exclusive control of customer data by Bigtechs is likely to undermine competition in financial markets, thus requiring effective data sharing mechanisms, such as Open Finance initiatives, to break data monopolies. Furthermore, given their combination of network effects and economics of scope and scale, digital finance platforms are in increasing cases becoming systemically important. There is a need for both activity-based and entity-based regulations to address risks involved in the interconnected financial businesses of these new SIFIs
Corporate Law as Decolonization
Full text linkAfter centuries of colonial subordination, Black and Brown former colonies are still fighting to achieve the fruits of decolonization. The traditional theory is that former colonies will emerge from the colonial period with the legal mandate and international recognition needed to chart their own futures. But, for those Black and Brown British colonies that achieved political independence, it became clear that, without economic strength to care for their societies, legal separation could not deliver on its promise of freedom from subordination. This Article argues that investments in corporate law innovations by some jurisdictions, such as Bermuda, the British Virgin Islands, and the Cayman Islands, have provided a pathway to postcolonial self-determination. These communities have generated immense wealth and autonomy for their populations in the postcolonial era by using strategies akin to those deployed by the State of Delaware. While former colonizers denigrate Bermuda, the Cayman Islands, and the British Virgin Islands as tax havens and corporate law imperialists, which must be aggressively governed to protect the tax base and financial sectors of “non-tax haven” countries, there is another side to this narrative: Offshore corporate law is freedom-promoting for some communities. This Article complicates the dominant perspective of corporate law imperialism and introduces a conceptualization of corporate law as decolonization to the legal and policy discourse on offshore financial centers
Don\u27t Go Changing to Try to Please Me: Understanding Sebelius via the Unconstitutional Coercion of Medicaid Estate Recovery Programs
Full text linkNational Federation of Independent Businesses v. Sebelius reshaped unconstitutional coercion jurisprudence: creating a three-part test for unconstitutional coercion while leaving the limits of the test undefined. Courts and commentators, faced with the confusion of applying Sebelius, have struggled to determine when and if Sebelius should apply. Stepping into this quagmire, this Comment applies the Sebelius rationale to Estate Recovery Programs (ERPs), a mandatory feature of Medicaid.
Every year, millions of Americans are impacted by ERPs. The main feature of ERPs is the seizure of a Medicaid patient’s estate following their death to repay the cost of providing medical care. When states effectuate recovery, decedents’ families are often left shocked, unaware the state could take their family home. Notably, ERPs exacerbate existing wealth disparities and are linked to reduced access to healthcare, as knowing patients avoid Medicaid to escape the ERP.
ERPs are ideal for exploring the limits of Sebelius because, to induce adoption of the ERP requirement, Congress and the Department of Health and Human Services threatened to end existing state Medicaid grants. This threat is the same inducement contemplated in Sebelius and held to be unconstitutionally coercive. To resolve the confusion about Sebelius, this Comment first presents a brief history of Medicaid. Then, it traces the development of ERPs and the impact of the requirement. The next section analyzes ERPs under the Sebelius coercion standard. Using this analysis, this Comment posits that the Sebelius coercion standard could apply to various federal programs and argues states should cease their ERPs
Structural Sex Discrimination: Why Gynecology Patients Suffer Avoidable Injuries and What the Law Can Do About It
Full text linkNearly four million Americans undergo gynecological surgeries each year, but these procedures are unnecessarily risky, as many suffer avoidable lifelong, painful, and disabling injuries. This Article diagnoses the root cause in our legal framework for healthcare finance. It then identifies solutions.
America’s public–private system for reimbursing healthcare pays for procedures rather than outcomes, and it pays substantially more for work on male rather than female anatomies. This disparity is due to the federal government’s reliance on a secretive industry committee to set those rates, and the committee’s reliance on junk science surveys, allowing self-interested and gender-biased responses, contrary to objective measures.
As payors disvalue the bodies of those needing gynecological care, the medical profession has organized accordingly. Surgical training for Obstetrician Gynecologists (OB-GYNs) is truncated as compared to other surgical disciplines. OB-GYNs are incentivized to pursue a mix of better-paid work, rather than pursue the advanced training and specialized experience necessary to perform surgery consistently. Instead, most OB‑GYNs may perform particular surgeries only a few times per year, a context shown to magnify the risk of preventable injuries.
Traditional approaches, under informed consent and medical malpractice laws, take for granted the fundamental economic structure that sets aggregate levels of risk. A range of laws, including a provision in the Affordable Care Act, do promise equal treatment. Close analysis, however, reveals a range of barriers to redress. Congress has made federal payment rates unreviewable by courts, even if illegal. Notwithstanding the federal government’s ironic immunity from its own laws, this Article suggests that private health insurers may be held liable for going along with the federal government’s discrimination. Still it will be difficult for individual patients to assert their interests in reorganizing the medical profession.
There are narrow and uncertain paths for legal accountability, but the political economy of this problem is no less daunting. Presently, overall Medicare payments are conceived as a zero-sum game, pitting patients (and doctors) against each other. Nonetheless, Constitutional litigation under the Equal Protection Clause may give voice to those working for the health of women in America
Innovator Ecosystem Diversity as a Global Competitiveness Imperative
Full text linkThere are myriad ways that discrimination and bias can combine to profoundly limit inventor participation in the patent process. The utilitarian purpose of patents is to incentivize inventors to invent and disclose, so it makes sense to incentivize as large and as diverse a group as possible in order to maximize the likely output of innovative activity. This incentive is important in terms of our geopolitical aspirations as a country, but hopefully also because of our democratic commitment to provide opportunities for flourishing and reaching one\u27s potential that are available to all
From Uniforms to Robes: Unveiling Judicial Review Practices of the Supreme Court of Israel in Cases Adjudicated in Military Tribunals
Full text linkWhile the Supreme Court of Israel has been, historically, perceived to be inclined to intervene in national security matters, this Article reveals a notable restraint in its review of criminal cases originating in military-operated tribunals. These tribunals include courts-martial (CMs), where soldiers are prosecuted, and occupied territory courts (OTCs), where Palestinians face charges. The study examines a database designed to encompass all available relevant cases decided by the Supreme Court of Israel from 2002 to 2021. It concludes that, despite its interventionist reputation, the Court exhibits a restricted, perhaps conservative stance toward criminal cases previously adjudicated by military judges. Notably, the data indicate a consistent reluctance by the Court to intervene in cases where Palestinian defendants were convicted by an OTC. Based on the data, the Article suggests that the Supreme Court may view itself as lacking the full democratic or professional accountability to scrutinize certain cases arising from military settings. To substantiate these findings, the study incorporates interviews with five senior stakeholders, including two former Supreme Court Justices, two defense attorneys, and a former Military Advocate General, whose insights contribute to a nuanced understanding of the Court’s approach to judicial review in military-origin criminal cases