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Linguistics in the Courtroom: Incorporating Considerations of Language and Context to Improve Criminal Court Consent Analysis
Get PDFA legal conundrum occurs every day: suspects regularly incriminate themselves by voluntarily granting their verbal consent to requested searches by law enforcement officers, yet later move to suppress on the basis that they never agreed to such a thing. When these disputes arise, fact finders are left to adjudicate a fundamentally linguistic issue—whether the presence of voluntary consent existed. Herein lies the problem. The current totality test that is used to make this determination gives judges enormous discretionary power to evaluate the merits of the case, but is completely devoid of methodology grounded in linguistic theory that could guide the court to a rational conclusion regarding the effect of language upon the interaction. Accordingly, voluntary consent to search jurisprudence appears disorderly, and suspects are routinely disadvantaged.
The solution to this problem is both simple and more attuned to the realities of human interaction: linguistics. In recent years, scholars have called attention to the utility of certain linguistic considerations, such as pragmatics, the study of how context contributes to meaning, and its relevant sub-theories, in analyzing officer-suspect interactions in related contexts such as Miranda rights jurisprudence. However, even though linguistics promises greater equality and more precise findings, courts today fail to consider linguistic inputs with any consistency, if at all.
This Comment reinvigorates the conversation about pragmatics in the courtroom—specifically emphasizing its value as a tool to better understand how suspects interpret requests for consent by power figures, such as law enforcement officers. Ultimately, this Comment will break new ground by proposing a series of solutions that can be implemented both in and out of court to reduce the effect of linguistically problematic language. First and foremost, courts should eliminate elements of the current totality test that find no support, or, even worse, contradictory evidence, in linguistic research, such as that which accounts for the cordiality of the exchange. Furthermore, by adopting the lens used in Fourth Amendment seizure analysis and Miranda custody jurisprudence—that of the reasonable suspect—courts can take steps toward correcting the systemic inequities that suspects face in the courtroom without overburdening themselves. Finally, the institution of a series of best practices for officers who seek to procure consent would not only provide suspects with a true opportunity to understand the nature of the questions being asked of them and protect themselves from unwanted privacy intrusions, but also decrease frivolous litigation over the merits of consent
Corporate Response To The War In Ukraine: Stakeholder Governance Or Stakeholder Pressure?
Get PDFThis Article empirically investigates the corporate response to the Russian invasion of Ukraine in the framework of the stakeholder capitalism debate. Some describe corporate leaders’ decision to withdraw from Russia as an example of stakeholder governance, maintaining that they placed social responsibility over profits. Others question the authenticity of corporate support for Ukraine and argue that companies left Russia mainly driven by operational and reputational concerns.
Against this backdrop, we conduct an empirical study of reactions to the outbreak of the war from companies in the S&P500 and STOXX600 indices. We explore whether managers effectively decided mostly on ethical and moral grounds, or whether perhaps there was another possible channel. In particular, we focus on assessing the role played by stakeholder pressure exercised on companies to leave Russia.
First, we examine whether revenue exposure to Russia was associated with the corporate decision to withdraw or suspend Russian activities, and the speed of the decision’s announcement. The findings indicate that firms which quickly announced their withdrawal from Russia actually had little revenue exposure to the country. Furthermore, we conduct a Twitter-based test of the virality of boycott campaigns and examine their relationship with managers’ decision to take positive action in supporting Ukraine and exiting Russia. Our analysis shows that the decision to withdraw from Russia is significantly positively associated with boycott campaigns. Finally, our research underscores important differences across market sizes. The smallest companies in our sample (mid-cap companies) are on average the most exposed to the Russian economy, whereas the Twitter boycott campaigns concentrated markedly on bigger firms (large and mega-cap firms).
Overall, the evidence presented in this paper suggests that corporate leaders tend to promote stakeholder interests when they face potential reputational damage that could affect shareholder wealth, or when it represents a good marketing move, so called “woke-washing”. The analysis also supports and reinforces the view that pressure from stakeholders – magnified by the use of social media – can successfully influence the corporate decision to pursue certain social goals and not only profits. However, our results highlight how size matters in the stakeholder capitalism debate. Stakeholder pressure on management can be an important and effective factor in achieving a socially desirable outcome, but it tends to focus on large, high-profile companies, while other market participants are left free to operate without this meaningful managerial constraint
Universal Owners, Shareholder Primacy, and Stakeholderism
Get PDFThe rise of massive asset owners like large pension funds and sovereign wealth funds has created interest in the phenomenon of Universal Owners. The climate crisis, environmental degradation, and worsening inequality have also led to challenges to the current models of corporate governance, with a particular interest on the idea of corporate purpose. This paper fills a gap by addressing the intersection of these two trends, proposing a framework by which Universal Owners should view corporate purpose. I argue that from a returns-maximizing perspective, Universal Owners should prefer a flavor of shareholder primacy that believes the corporation’s purpose is to contribute to sustainable economic growth. In the course of answering this question this paper also advances our understanding of Universal Owners by clarifying the difference between ESG investors and Universal Owners, and arguing for large index funds to be treated as a type of Universal Owner. This paper also contributes to the literature on heterogenous shareholder interests by identifying the potential conflict between Universal-Owners and non-Universal Owners as another example of this conflict, and one where current corporate law resolves against Universal Owners
Having Your Cake and Eating It Too: Why Voluntary Post-Petition 401(k) Contributions Are Disposable Income
Get PDFFollowing the 2005 amendments to the Bankruptcy Code, the majority of chapter 13 debtors have been successful in minimizing their repayment obligations to creditors while bolstering their financial stability during retirement. The Bankruptcy Code allows chapter 13 debtors to retain their assets and repay their debts to creditors using their earned income. Alternatively, debtors may simply avoid some of the liability by dedicating a portion of their earned income for reasonably necessary expenses. Judicial inconsistencies have emerged concerning whether voluntary post-petition 401(k) retirement contributions for chapter 13 debtors constitute disposable income in accordance with Sections 541(b)(7) and 1325(b) of the Bankruptcy Code.
A majority of courts follow the Johnson approach, whereby all post-petition 401(k) contributions are excluded from a debtor’s disposable income, and therefore out of reach for creditors. Other bankruptcy courts follow the Prigge approach, whereby post-petition 401(k) contributions are included as disposable income available to creditors. Still other courts follow the Seafort approach, whereby post-petition 401(k) contributions are excluded from disposable income only if such contributions were made pre-petition.
This Comment argues that excluding post-petition 401(k) contributions from the debtor’s disposable income available to creditors—the approach followed by most courts—undermines the “fresh start” goal of consumer bankruptcy. After highlighting the shortcomings of the current post-petition 401(k) contribution analysis, this Comment suggests that there lies a strong argument for including post-petition 401(k) contributions in a debtor’s disposable income, thereby curbing the opportunity for abuse and restoring the balance between debtors and creditors
Reimagining Merger Analysis to Include Intent
Get PDFApplications of Section 7 of the Clayton Act have been deficient in identifying and prohibiting anticompetitive mergers, particularly those involving the acquisition of nascent competitors in digital markets. While the language of the Clayton Act is flexible and broad, its implementation has evolved into a narrow, economic-focused analysis that requires (or expects) quantitative evidence to show competitive harm and establish a prima facie case. This approach sets an unusually high bar for plaintiffs when the mergers involve dynamic technology markets in which firms compete more on innovation than on price, primarily because the preferred economic tools are not well equipped to measure and predict innovation harms in the long run. The problems are exacerbated when dominant firms acquire nascent competitors because the potential competitive impact of their acquisition is inherently even more uncertain and therefore the quantifiable metrics even less helpful.
This Article makes a case for reimagining merger analysis to include intent to help satisfy the plaintiff’s evidentiary burden and strengthen merger enforcement. Insisting on, or strongly preferring, empirical data to demonstrate effects of a proposed acquisition when that data is unavailable means that merger law will fail in its core mission for at least certain types of mergers. Therefore, the better approach is to be open to the use of other sources of evidence, such as intent, to supplement standard economic evidence. This Article explains why and how intent evidence can be probative in predicting effects, particularly in the case of a dominant digital platform’s acquisition of a nascent rival. To illustrate, this Article draws on the collection of emails and statements made by Facebook’s executives relating to the company’s famous acquisitions of Instagram and WhatsApp.
Though many courts and commentators today are dismissive of the value of intent, integrating it into merger analysis would not require legislative action because the relevant statutory language is broad and no major case has barred its use. The Article concludes by addressing the main objections that critics have raised about the use of intent evidence in antitrust analysis generally
For Whom the Bell Tolls: Bell v. Itawamba Targets Rap Music and Students\u27 Free Speech Rights
Get PDFIn the Fifth Circuit Court of Appeals case Bell v. Itawamba, student free speech rights, a vigilantly protected constitutional freedom, came to clash with rap music, an art form viciously misunderstood by much of America. The distaste for rap ultimately won out—the court crafted a new, more restrictive student free speech doctrine to render the rap lyrics in question, which were produced and published off the school’s campus, regulable by the school board. This ruling is legally noteworthy because it dramatically augments school boards’ authority to regulate student expression, even when such expression does not take place at school. On a deeper level, the case is also culturally significant in demonstrating how the denigration of rap music has weaponized this art form against its own creators, effectively criminalizing their creativity.
This Comment offers a critical assessment of Bell v. Itawamba. It begins with an in-depth history of rap music, chronicling rap’s origins as a language of liberation rooted in the Civil Rights and Black Power Movements; its eventual monetization, commercialization, and co-optation; and its current criminalization in public schools. After discussing the existing Supreme Court student free speech framework, this Comment shows how Bell ignored, side-stepped, and sometimes downright contradicted precedent to uphold a more restrictive student free speech framework that disparages the social utility and value of rap music. Finally, this Comment argues for the express adoption of a “true threat” standard for student free speech, a standard that strikes the proper balance between pedagogical concerns and students’ free speech rights while diminishing the educational and social harms that currently disproportionately affect Black students on account of rap’s de facto illegality in the public school context
The Extraterritorial Reach of Section 10(b): A Wolf Hunt Off Wall Street
Get PDFBorn to combat the market effects of the Great Depression, the Securities Exchange Act of 1934 protects American investors and maintains American confidence in the U.S. securities market. These objectives are largely accomplished through the imposition of liability from Section 10(b) of the Securities Exchange Act and the SEC’s Rule 10b-5. These federal laws impose civil and criminal penalties for domestic insider trading and securities fraud violations. Because Section 10(b) and Rule 10b-5 only apply domestically, when securities violations occur both within the United States and abroad, the reach of federal law becomes questionable, leaving federal courts with a complex issue.
To resolve this issue, the Second Circuit created a Conduct and Effects test that left federal courts with a subpar solution to determine when Section 10(b) may apply extraterritorially. The test developed for over forty years and was widely accepted until the Supreme Court, in Morrison v. National Australia Bank, Ltd., brought Section 10(b)’s extraterritorial reach to a screeching halt in 2010. Ushering in a fundamental shift in securities law, Justice Scalia abrogated the Second Circuit’s Conduct and Effects test and purported to provide a clear Transactional test that avoided interference with foreign securities regulation. But the Court missed the mark, and instead created two new issues for the circuit courts of appeals. First, the Transactional test created an ambiguity that resulted in a sharply divided split among the First, Second, Third, and Ninth Circuit Courts. Second, the simultaneous enactment of the Dodd-Frank Act prompted a question of whether Congress partially abrogated the Court’s decision in Morrison and reinstated the Conduct and Effects test.
In the wake of this circuit split comes uncertainty among the lower courts, threats to stare decisis, plaintiffs avoiding a defendant-friendly Second Circuit by forum shopping, and strains on international comity. To resolve the split, this Comment sets forth a factor-balancing test that determines whether the foreign elements of a transaction overcome the domestic elements to render Section 10(b) inapplicable to the conduct. This Spectrum test provides a flexible, but narrowly tailored, framework that can adapt to a rapidly evolving and globalizing securities market. It provides courts with a workable and consistent analysis that will facilitate the development of Section 10(b) jurisprudence
Secularism, Religion, and the State in a Time of Global Crisis: Theoretical Reflections on the Work of Abdullahi An-Na\u27im
Get PDFThis Essay presents a primarily theoretical examination of critical aspects of Abdullahi An-Na’im’s body of work. Drawing on my earlier work, the essay describes the current historical moment as one of “crisis globalization,” a normative condition characterized by the rise of authoritarianism and erosion of democracy across the globe, a backlash against religious and other kinds of minorities, as well as by a general sense of existential uncertainty stemming from the impact of climate change, terrorism, and our vulnerability to pandemics like Covid-19. I argue that An-Na’im’s work speaks especially powerfully to several aspects of this new condition. An-Na’im’s theorization and reconceptualization of the relationship between the secular and the religious, and his elaboration on the role of state and society in mediating that relationship, help us think through and grasp the rise of authoritarianism and religious majoritarianism. They also illuminate a path and template for countering these trends, as elaborated in An-Na’im’s articulation of the necessity and challenge of endowing the relationship of the state and religion, and a corresponding idea of the secular, with cultural legitimacy. In the Essay, I also examine these ideas with reference to recent developments in India, the distinct character of whose experience with secularism seems increasingly under threat