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The Rise of Counter-Terrorism and the Demise of Human Rights
Get PDFThis lecture addressed the consolidation and expansion of counter-terrorism norms and institutions since 9/11. The rise of counterterrorism has enabled the consolidation of autocracy, sustained democratic backsliding and undermined the capacity of civil society to function across the globe. The impact on human rights has been extensive and highly detrimental to the most vulnerable individuals and groups across the world. Drawing on my work as United Nations Special Rapporteur on Counter-Terrorism and Human Rights since my 2017 appointment, the lecture shows the hard choices that must be made nationally and globally to reverse these trends
A Combatant or not a Combatant that is the Question: Arguing the Case of Combatant Status for Non-Military Government Personnel and Private Military Contractors Engaged on the Modern Battlefield
Get PDFOECD Two-Pillar GloBE Rules: Is It Time to Abandon Hope for International Cooperation on a Global Minimum Corporate Income Tax?
Get PDFExoneration Finance
Get PDFThe path to financial compensation for the wrongfully convicted can be complex and time-consuming. Exonerees often struggle to make ends meet and function in free society, let alone navigate serpentine processes while waiting years for the recovery they deserve. Securing the assistance of an attorney is often a critical step, but too few lawyers are willing to risk accepting these complicated cases on a contingency-fee basis—the only way that exoneree-clients can likely pay their lawyers without outside help.
Litigation finance—an important tool for increasing access to justice in tort cases—could help close this access to justice gap for exonerees. In a practice called client-directed financing, litigation funders have provided a relative handful of exonerees with cash advances, often leading to greater recoveries in the long run. After considering the benefits and burdens of client-directed financing, we argue that litigation funders ought to consider lawyer-directed financing as well. Through lawyer-directed financing, financiers provide funds directly to private lawyers (instead of to their clients), which mitigates the lawyers’ contingency-fee risk and thereby encourages more lawyers to represent exonerees. If more lawyers were to handle more exoneration compensation matters, the secondary benefits could be significant: securing more money for more exonerees, enhancing public safety, developing a more experienced bar, and increasing the likelihood that some police and prosecutors will alter their behavior towards future suspects and defendants.
For lawyer-directed financing to emerge, many states would have to make two changes to their laws: First, state supreme courts would need to interpret their attorney-client privilege laws to allow for necessary information to be shared with the financier without constituting waiver. Second, laws prohibiting champerty and sharing fees with nonlawyers would need to be removed. Even with those changes, we believe that ethics rules should properly constrain the financier’s ability to control the legal matter and that the risks presented by outside financing are outweighed by the gains in access to justice for the many exonerees who don’t presently have lawyers. For these reasons, we believe the expansion of litigation finance for exonerees merits serious consideration
What’s the Game Plan? An Analysis of how Antitrust and Sanction Laws Currently Apply and Should Apply to the International Sports Investment Boom
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Penalizing Compliance: The Case for Paying Chapter 13 Trustees in the Event of Pre-Confirmation Dismissal
Get PDFStanding trustees provide a critical function of fairness in chapter 13 bankruptcy, but a jurisdictional split regarding their fees means that trustees in multiple circuits are not paid for a large percentage of their work. Under Ninth and Tenth Circuit precedents, standing trustees may not collect the percentage fee when the debtor’s case is dismissed before confirmation. This creates a different result for standing trustees as opposed to single-case trustees, hurts debtors and creditors, creates adverse incentives, and even constitutional conundrums.
Permitting some debtors to enjoy the benefits of chapter 13 without paying their fair share creates a system where standing trustees must work on their cases, potentially for extended periods of time. Further, trustees risk going uncompensated if the debtor decides he wants to leave chapter 13 or refuses to propose a viable plan for confirmation. When these debtors do not pay the trustee fee, the trustee must find another source to fund her office operations. Thus, trustees resort to increasing their percentage fee to compensate for these losses, meaning other debtors must pay more to use chapter 13 and unsecured creditors get a lower payout.
The Ninth and Tenth Circuit approaches further create nonsensical incentives where debtors are motivated to draw out the confirmation process as long as possible with no intention of confirming their plan to avoid paying the trustee fee. It also creates an incentive for trustees to confirm plans regardless of their feasibility, working counter to their role as a keeper of fairness in chapter 13. Additionally, by only awarding trustees their fees in the event of confirmation, a constitutional issue arises due to the trustee’s role as a quasi-judicial officer. This Comment untangles the various approaches courts have taken in awarding trustee fees in the event of pre-confirmation dismissals and delves into the harmful consequences of the Ninth and Tenth Circuit precedents.
This Comment argues that standing trustee compensation in chapter 13 should not be denied merely because a debtor’s proposed plan does not pass confirmation muster. Such an approach creates absurd and undesirable outcomes across the board in the chapter 13 system. Rather, courts should endorse the approach of other bankruptcy and district courts that allow for payment of standing chapter 13 trustee fee awards regardless of plan confirmation status. Even better, Congress should settle the issue by crafting a simple amendment to the Bankruptcy Code that resolves this issue entirely
Law in Inaction: The Origins and Implications of Chronic Drug Law Underenforcement in One Southern County
Get PDFCommon accounts of police and prosecutorial nonenforcement discretion tend to valorize individual declination choices as demonstrations of mercy and resource constraint. Simultaneously, these accounts critique blanket nonenforcement policies as being outside the bounds of executive authority. Both accounts fail to consider the origins and implications of nonenforcement decisions made by police officers and prosecutors in individual cases that, when taken together, amount to significant underenforcement of an otherwise valid law.
This Article fills the gap between these differing perspectives by empirically examining the hidden and habitual underenforcement of technically valid drug-free-zone (DFZ) laws in one Southern county. Data matching the locations of felony drug arrests with residential, school, and commercial drug-free zones shows chronic underenforcement of DFZ laws during the first decade of the twenty-first century. Interviews with police and prosecutors in this county expose their reasons for nonenforcement. These reasons predominately include ignorance, benign neglect, institutional mistrust of other system actors’ motives and competence, and pessimism about the ability of the laws to effect deterrence. Finally, interviews with active drug offenders within the county reveal their limited understanding of the nature of DFZ laws, the terms of liability, and the consequences of being charged with a violation.
While chronic underenforcement of DFZ laws is surely preferable to widespread application of an overly punitive drug policy, these laws can stigmatize the underclass even if not meaningfully enforced. Moreover, if enforcement were to be reinvigorated, the zone locations would likely create considerable disparities in criminal legal processing. Only structural legal change can mitigate these concerns
Protecting Title IX’s Promise: The Injustice of Indifference in Title IX Peer Sexual Harassment Cases
Get PDFTitle IX of the Education Amendments of 1972 promised dramatic measures to address sex-based discrimination in education. In the context of civil suits against schools involving peer sexual harassment, these measures have yet to live up to their promise. Under the existing standard, student victims of peer sexual harassment must demonstrate that their educational institutions responded to their reports of harassment with “deliberate indifference.” This standard favors institutions over students as it imposes liability only in the most egregious cases. A deepening conflict between the circuit courts regarding what deliberate indifference actually requires compounds concerns over the standard’s ineffectiveness. Courts like the Sixth Circuit, who adopt a narrow interpretation of deliberate indifference, require that students show they were subjected to subsequent actionable harassment, a rule that further harms students. In contrast, courts like the Tenth Circuit utilize a broader interpretation and find that a demonstration of vulnerability to further harassment is sufficient to establish deliberate indifference.
After reviewing the policy motivations behind Title IX and tracing the development of the deliberate indifference standard to its recent split, this Comment argues for the codification of the Tenth Circuit’s standard, which permits plaintiffs to show deliberate indifference through either further actionable harassment or vulnerability to further harassment. The amendment should also evaluate institutional responses under a standard of unreasonableness rather than clear unreasonableness. This approach would solidify Title IX’s application to peer sexual harassment, encourage proactive and meaningful institutional responses, and allow plaintiffs a greater chance of obtaining relief
Catalyzing Climate Resilience in the Electric Utility Sector: Investor-Backed Utilities Must Prepare for the Approaching Storm
Get PDFCommunities and businesses that fail to take proactive measures will be devastated by the impacts of climate change. Across the United States, public and private entities have taken steps to protect companies and communities from climate change. However, financial restrictions and shareholder concerns have slowed such a response from the electric utility sector. This inaction has devastated communities such as Paradise, California and Lahaina, Hawaii. This Comment identifies how electric utility companies should utilize recently passed federal legislation, including the Bipartisan Infrastructure Law and Inflation Reduction Act, to finance large-scale projects to update America\u27s power grid. This Comment also argues that more corporate social responsibility is necessary and attainable through embracing the stakeholder theory of corporate governance and tying executive compensation to public safety metrics and investments in infrastructure. Companies that act immediately will better protect their communities and shareholders in the long term. However, companies that fail to act will be subject to the ensuing storm of climate change and its impacts—including damage to utilities\u27 infrastructure and increased legal liability