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Hong Kong\u27s Civil Disobedience Under China\u27s Authoritarianism
Get PDFActs of civil disobedience have significantly impacted Hong Kong’s liberal constitutional order, existing as it does under China’s authoritarian governance. Existing theories of civil disobedience have primarily paid attention to the situations of liberal democracies but find it difficult to explain the unique case of the semi-democracy of Hong Kong. Based on a descriptive analysis of the practice of civil disobedience in Hong Kong, taking the Occupy Central Movement (OCM) of 2014 and the Anti-Extradition Law Amendment Bill (Anti-ELAB) movement of 2019 as examples, this Article explores the extent to which and how civil disobedience can be justified in Hong Kong’s rule of law-based order under China’s authoritarian system, and further aims to develop a conditional theory of civil disobedience for Hong Kong that goes beyond traditional liberal accounts. More specifically, it is argued that an act of civil disobedience targeted at the actions of the central government, which has no democratic accountability to the people of Hong Kong, is one aimed outside the domain of Hong Kong’s autonomy, and is thus unlikely to succeed in the Hong Kong context. By contrast, an act of civil disobedience intended to push against the government of Hong Kong acting within its domain of autonomy largely fits into Hong Kong’s semi-democratic system. Moreover, it is suggested that both forms of civil disobedience have had significant utilitarian value as a civic educational tool. Finally, this Article reconciles unlawful acts of civil disobedience with Hong Kong’s rule of law by establishing clear limitations on permissible conduct, with particular attention paid to non-violence as a fundamental condition, albeit without excluding the use of limited forms of violence as an appropriate strategy, e.g., to invigorate political participation, in particular when available democratic and peaceful channels have been exhausted
LaFarge\u27s Case Cemented: Holding Corporations Liable for Crimes Against Humanity
Get PDFThe LaFarge case highlights two key issues: accountability of multinational actors operating in conflict areas for contributing financially to the commission of atrocities by terrorist groups or other entities; and the responsibility of parent companies for the illegal activities of their subsidiaries abroad. At present, the criminal case against LaFarge for complicity in crimes against humanity and other violations is before the French Supreme Court, with hearings continuing through 2021. In 2017, France introduced the first “duty of vigilance” law in Europe, which obligates companies to prevent human rights abuses in their supply chains worldwide, and requires them to pay damages if they fail to do so. Ahead of the curve in pioneering laws for protecting individuals from, and imposing accountability for, human rights abuses stemming from multinational companies’ activities, France offers a ripe environment to pursue what is, until now, an unprecedented criminal complaint
The New Tipping Point: Disruptive Politics and Habituating Equality
Get PDFThis Essay argues that the events of 2020 opened a window of political opportunity to implement policies aimed at dismantling structural injustice and systemic racism. Building on the work of philosopher Charles Mills and political scientist Clarissa Rile Hayward, we argue that the Black Lives Matter Movement constituted the “disruptive politics” necessary to shift dispositions of many in the United States toward racial equity by interrupting the white “epistemologies of ignorance.” Moreover, because policies that correct structural injustice are beneficial for people across race, even those whose hearts and minds remained closed may embrace legislative policies that function to dismantle systemic racism. As people become habituated to structures that facilitate equality and the policies that underlie them, the United States will finally begin to tip toward equality and a society of belonging
How the Fourth Amendment Frustrates the Regulation of Police Violence
Get PDFWithin policing, few legal principles are more widely known or highly esteemed than the “objective reasonableness” standard that regulates police uses of force. The Fourth Amendment, it is argued, is not only the facet of constitutional law that governs police violence, it sets out the only standard that state lawmakers, police commanders, and officers should recognize. Any other regulation of police violence is inappropriate and unnecessary. Ironically, though, the Constitution does not actually regulate the use of force. It regulates seizures. Some uses of force are seizures. This Article explains that a surprising number of others—including some police shootings—are not. Uses of force that do not amount to seizures fall entirely outside the ambit of Fourth Amendment regulation. And when a use of force does constitute a seizure, the Fourth Amendment is a distressingly inapt regulatory tool. There is, in short, a fundamental misalignment between what the Fourth Amendment is thought to regulate and what it actually regulates, and there are good reasons to doubt the efficacy of that regulation even when it applies. Put simply, the Fourth Amendment is a profoundly flawed framework for regulating police violence. The Constitution is not the only option. Police reformers have offered state law and police agency policies as promising regulatory alternatives. What has largely evaded academic attention, however, is the extent to which state courts and police agencies simply adopt or incorporate the constitutional standards into state law or agency policies. In this way, the Fourth Amendment’s flaws have spilled over into the sub-constitutional regulation of police violence. This Article details the substantial shortcomings in constitutional jurisprudence, describes the problem of Fourth Amendment spillage, and argues that the divergent interests underlying the various regulatory mechanisms should lead state lawmakers and administrative policymakers to divorce state law and administrative policies from constitutional law. In doing so, it advances both academic and public conversations about police violence
Disorderly and Discriminatory: The Bankruptcy Code\u27s Treatment of Disabled Debtors
Get PDFDisability benefits in bankruptcy face uncertainty under the current exemption system. The enumerated federal exemptions are poorly drafted, lack useful legislative history, and classify benefits depending on the benefit’s source. The opt out provision found in section 522(b) of the Bankruptcy Code allows jurisdictions to limit debtors to the state’s exemptions rather than the federal exemptions. Depending on which exemption the court places the disability benefits under, the benefits may be fully exempt from the bankruptcy estate, limited to the amount reasonably necessary for the debtor’s support, or unexempt. The bankruptcy courts struggle to uniformly apply the federal and state exemptions, resulting in three main issues. First is the classification of the disability benefits, which determines if the benefit will be fully exempt, unexempt, or partially exempt. Second is the poorly drafted federal exemptions create temporal issues for disability benefits, including past benefits and the right to future benefits. Third is the courts’ struggle with the form of the disability benefits, especially if the benefit is not cash, and struggle to decide whether the exemptions also cover funds deposited and goods purchased with the funds. This Comment proposes several amendments to the Code to combat the three main issues for disability benefits: first, defining the term disability benefit in section 101 of the Code; second, redrafting the exemptions in section 522; and third, eliminating the opt out provision solely for disability benefits in section 522(b). Finally, the proposed system is directly compared with the current exemption system, demonstrating the proposed system’s equity and ease of application
The Political Reality of Diversity Jurisdiction
Get PDFDiversity jurisdiction survived concerted frontal assaults made from the mid- to late-twentieth century. It weathered criticism of academics and of some high-profile federal judges. Today, diversity jurisdiction represents a burgeoning percentage of the federal civil docket, and it is supported by an efficiency rationale that did not exist at the founding. Today, academics and judges seem relatively ambivalent toward, and some even accepting of, diversity jurisdiction. Today, we see efforts not to abolish diversity jurisdiction, but to rationalize the various threads of its doctrine.
These efforts should be informed by the lessons that should have been learned by those who sought to abolish diversity jurisdiction. First, diversity is not a free-standing phenomenon. It is part of a carefully constructed constitutional plan intended to promote the free flow of commerce and a national identity. Second, what is usually presented as the traditional justification for diversity is sclerotic and understates the value of this branch of federal jurisdiction. Third, as a matter of political power, the bar embraces diversity jurisdiction and will fight to keep it. At one level, we retain diversity for this reason. But the bar’s embrace is more than a raw political fact. It likely manifests rational choices made in the interests of clients. At least, it should spur meaningful study of the interests served by diversity jurisdiction (study that remains to be done). And that study must appreciate that, over two centuries, an elaborate legal culture has emerged concerning the relations of state and federal courts
Fiscal Waivers and State Innovation in Health Care
Get PDFThis Article describes how the Department of Health and Human Services (HHS) has used fiscal waiver authorities—delegated power to alter federal payments to states under Medicaid and the Affordable Care Act (ACA)—to influence state health policy choices. It highlights how the agency uses its fiscal waiver authorities to shape which reforms states choose to pursue, in some cases inspiring genuine state innovation and in others encouraging states to adopt reforms favored by HHS or discouraging states from adopting disfavored reforms. Moreover, while HHS has sometimes influenced state policy making in ways that further the substantive goals of the ACA and Medicaid (such as by facilitating reinsurance programs that make coverage more affordable), at other times it has done so in ways that undermine those goals (such as by incentivizing states to cut benefits and eligibility or by stifling state single-payer and public-option experiments). This Article theorizes fiscal waiver authorities as a double-edged tool from the perspectives of health policy, federalism, and administrative law. Fiscal waiver authorities are a distinctively valuable tool from the standpoint of health policy because they share federal savings, using delegated scorekeeping to overcome the “tyranny of the budget” and its adverse effects on health reform. But the informality currently surrounding the agency’s use of executive conditions on waiver approvals makes fiscal waiver authorities ripe for leveraging and abuse, raising health policy, federalism, and administrative law concerns.
This Article concludes by offering concrete prescriptions for the next phase of health reform, which is poised to rely heavily on either existing fiscal waivers or new ones. It recommends that HHS bring greater formality to its process for approving, denying, or negotiating state waiver requests and cautions that if the agency does not do so then courts may force such formality on it by way of nondelegation, federalism, or administrative law doctrine. It also suggests the development of a pioneer pathway program with greater predictability and fiscal flexibility to facilitate health-promoting state innovations
Corporate Political Power: The Politics of Reputation & Traceability
Get PDFWe live, it is said, in a second Gilded Age, in which politics is dominated by corporate power and elite business interests. But how does corporate money flow into politics? This Article provides an original empirical analysis of when and why corporations engage in particular forms of political activity and uses those findings to develop a novel, empirically-grounded approach to the First Amendment’s treatment of traceability mandates in politics.
We analyze the conditions under which firms shift between (1) using their political action committees (PACs) to contribute to candidates and political parties, and (2) engaging in less traceable forms of political activity, like lobbying, in which the specific targets of firms’ influence efforts are unknown. This Article identifies a key variable that explains when and why corporations shift from lighter (more traceable and direct) to darker (less traceable and more indirect) channels of political engagement. We demonstrate that corporate political activity grows darker as a firm’s reputation grows more negative. This dynamic produces the disquieting result that the corporate political interventions that are likely to be the most controversial are also those most likely to be deployed in ways the public is least able to monitor.
Our findings indicate that the traceability of money creates a concrete limit on the ability of corporate actors to influence politics—a limit which plausibly applies to political giving more broadly. Corporate donors who are seen as political liabilities find it increasingly difficult to locate politicians who will openly take their money or accept other support. Politicians refuse or return traceable donations from disreputable donors. Our research thus demonstrates that the power of business in politics is more conditional than generally appreciated.
This Article uses these empirical findings to interrogate the relationship between traceability mandates in politics and theories of the First Amendment. While the Supreme Court has prominently struck down restrictions on money in politics in cases like Citizens United v. Federal Election Commission, it has repeatedly upheld a variety of disclosure requirements. For a range of reasons, including the Supreme Court’s decision in Americans for Prosperity Foundation v. Bonta, however, disclosure mandates are likely to become an increasingly important site of conflict in both policy and litigation, making it ever more important to assess and theorize the justifications for them.
Our research suggests an empirically-grounded justification: traceability alters politicians’ behavior, causing them to act more consistently with public opinion. In other words, traceability mandates make politicians more accountable to the people. At the same time, there is evidence that traceability policies, and the reduction of darker corporate money in politics they produce, promote the public’s belief that their views shape the political system. Traceability mandates, in sort, advance both objective and subjective forms of democratic accountability. We thus argue that policies that advance the traceability of corporate money in politics not only further core First Amendment values but may be required by them.
By identifying how and why corporate money flows into politics at a fine level of detail, this Article also provides important information that policy makers can use to craft campaign finance and lobbying reforms. Our empirical findings and theoretical analysis support policy changes that increase the traceability of corporate money in politics, including broader and more robust disclosure requirements for corporate lobbying and individual donations made by corporate executives and directors
State Securities Enforcement
Get PDFEach year, state securities regulators bring over twice the enforcement actions brought by the Securities and Exchange Commission, yet their work is largely missing from the literature. This Article provides an institutional account of state securities enforcement and identifies two key advantages—detection granularity and institutional decentralization—that states enjoy over their federal counterparts in policing localized frauds involving individual, often small-dollar, victims. Although states share enforcement jurisdiction with the SEC and DOJ, their enforcement activity reflects their institutional advantages and constraints and thus largely does not overlap with that of federal authorities. Instead, states serve as the nation’s residual securities enforcers, policing local misconduct that federal authorities or private plaintiffs largely do not. The states’ work as residual securities enforcers should thus guide state and federal authorities as they cooperate and complement each other’s enforcement missions. And given the need for local investor protection, proposals around national securities policy should bolster that work or, at the least, mitigate negative impacts on it
Forum Selection Clauses—Procedural Tools or Contractual Obligations? Conceptualization and Remedies in American and German Law
Get PDFGerman and American law differ methodologically in treating exclusive forum selection clauses. German law permits parties, subject to limitations, to derogate the jurisdiction of courts and, in the interest of predictability, to select a specific court for any future disputes. The German Supreme Court emphasized in 2019 that, as a contract provision, the clause also gives rise to damages in case of breach. American law historically does not permit parties to “oust” the jurisdiction a court has by law. But the parties’ wishes may be given effect by granting a party’s motion to dismiss for forum non conveniens (FNC) when sued in a different court in breach of the agreement. FNC dismissals are granted upon a “weighing of interests” and in the court’s discretion. The clause, even when otherwise valid, is therefore not the kind of binding obligation, enforced by contract remedies, as in German law. The case law does not give effect to its “dual nature,” as characterized by the German Supreme Court. The latter’s decision correctly awarded attorneys’ fees for expenses incurred by the plaintiff when the defendant had sued (and lost) in the United States in breach of a forum selection clause, especially since German jurisdiction and German law had been stipulated. Application of the “American Rule” of costs most probably would not have shifted fees to the losing party had American law been applied, although the rule is far less stringent today than often assumed