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Making Deflection the New Diversion for Drug Offenders
Get PDFThe argument unfolds as follows. In Part I, we describe the origins and operation of deflection programs that currently exist in the United States and present the published empirical evidence about their effect on recidivism rates, as well as police and user population responses to them. We specifically discuss the LEAD template from Seattle, in addition to other models in Massachusetts and Texas. In Part II, we take a closer look at how conventional policing differs from the pre-arrest diversion program that was recently instituted in Atlanta. Using data from an original dataset of all 2012 felony drug arrests in Atlanta, we contrast the conventional approach to handling drug possession cases to the pre-arrest diversion approach and speculate about the savings that might have accrued had pre-arrest diversion been implemented years earlier. In Part III, we argue that prosecutors ought to become participants in and champions of county-wide deflection partnerships. As New Jersey\u27s Burlington County Prosecutor\u27s Office is the national leader in this effort, features of the Burlington program appear prominently in this discussion. We conclude on a comparative note, assessing how deflection measures up against conventional prosecution, diversion, and non-prosecution of substance users
Is There a New Extraterritoriality in Intellectual Property?
Get PDFThis Article proceeds as follows. Part I discusses the state of the law of extraterritoriality in copyright, trademark, and patent, as it stood before the Supreme Court’s recent intervention. This review demonstrates that all three disciplines were treating extraterritoriality very differently, and none were paying much attention to the presumption against extraterritoriality. Part II reviews a tetralogy of recent Supreme Court cases, describing the Court’s attempt to formalize its approach to extraterritoriality across all fields of law. Part III analyzes the state of IP law in the aftermath of this tetralogy of extraterritoriality cases. It concludes that there has been some impact on patent law, but virtually none on copyright or trademark. The Article assesses whether there is a new extraterritoriality for intellectual property and concludes that there is not: The Supreme Court’s efforts, at least in IP, have not led to greater coherence. While there may be reasons for the lower courts’ failure to follow the framework, it does represent a missed opportunity for cross-fertilization, at least among intellectual property regimes, if not across all fields of law. It also offers a call for the consideration of comity—looking to foreign law and potential conflicts—in deciding whether to apply U.S. law extraterritorially
(Im)mutable Race?
Get PDFCourts rarely question the racial identity claims made by parties litigating employment discrimination disputes. But what if this kind of identity claim is itself at the core of a dispute? A recent cluster of “reverse passing” scandals featured individuals—Rachel Dolezal and Jessica Krug among them—who were born white, yet who were revealed to have lived as members of Black, Indigenous, or Person of Color (BIPOC) communities. These incidents suggest that courts will soon have to make determinations of racial identity as a threshold matter in disputes over employment discrimination and contract termination. More specifically, courts will have to decide whether racial identity can change.
This Essay offers a framework for thinking about the legal disputes that will arise from accusations of reverse passing. It makes a normative sociological statement about how we should understand changes in racial identity, as well as a positive doctrinal statement about what that means for law. Social science and theory have long questioned the claim that race is a stable identity marker such that there can be a fixed, objective, and observable truth. Law, conversely, has generally rejected the possibility of racial transformation even as it grapples with the mutability of other seemingly immutable traits.
I show that, particularly in light of the Supreme Court’s 2020 decision in Bostock v. Clayton County, social science and law are not as far apart as we may think. The doctrinal foundations needed to account for racial identity transformation already exist, and the analytic means of doing so are largely there as well. What is left for courts to do is to cultivate attentiveness to race in a way that realizes these legal principles and social science insights. The Essay concludes with suggestions for how courts can cultivate a greater attentiveness to the ways in which race is performed and experienced: a kind of analysis that courts already conduct but could conduct better
COVID-19 and the Impact on Commercial Real Estate
No full textThird Presentation
COVID-19 and the Impact on Commercial Real EstateTamaron Houston, Partner, Seyfart
Event Program
Get PDFEmory Bankruptcy Developments Journal Workshop
March 12, 2021 10:00 a.m. - 3:15 p.m.
Emory University School of Law via Zoo
Demystifying the Legitimacy of International Tribunals: Case Study of the International Court of Justice and Its Decisions on Armed Activities in the Congo
Get PDFOver the last seven decades, there has been a proliferation of international tribunals. Yet, they have not received unanimous approval, raising questions about their legitimacy. A legitimate international tribunal is one whose authority to adjudicate international disputes is perceived as justified. Using the case study of the International Court of Justice (I.C.J.), this Article highlights the three criteria that should be considered in assessing the legitimacy of an international tribunal, which include legal, sociological, and moral elements. It also contends that the I.C.J. cannot claim “full” legitimacy if any of these components are missing in its decisions. The Article further suggests that the legitimacy of the I.C.J. has a dynamic nature, as litigating parties may continually change their perception of the court’s authority at any time before, during, or after the judicial process. The Article equally describes other factors that can contribute to maintaining the international court’s legitimacy, including fairness and unbiasedness, sound interpretation of international legal norms, and transparency
The Human Capital Management Movement in U.S. Corporate Law
Get PDFCorporations cannot exist without workers, yet workers are not part of the formal or informal governance structures established by U.S. corporate law. Commentators and policymakers have bemoaned this state of affairs for decades, to little avail. Since the mid-2010s, however, a concept related to workers, human capital management (HCM), has become an increasingly prominent part of U.S. corporate governance. HCM is premised on the notion that workers can be viewed as “assets” and ought to be managed just as carefully as firms manage physical and capital assets. In practice, HCM is an expansive concept that has been used to refer to workforce training, compensation and retention issues, gender pay equity, diversity and inclusion, health and safety, matters related to corporate culture, employees’ ability to participate in stock purchase programs, and various other matters.The speed with which HCM has emerged and the depth and breadth of its reach have been surprising. While broadly fitting within the rubric of environmental, social, and governance (ESG) factors, HCM has quickly surpassed more traditional ESG topics in terms of prominence and uptake. Boards of directors have started to focus on HCM as part of their monitoring and oversight responsibilities, including by amending committee charters to cover HCM matters, identifying HCM as a desirable qualification for director nominees, and incorporating HCM metrics into executive compensation plans. Investors are now actively engaging with management and boards on questions pertaining to HCM. In August 2020, the Securities and Exchange Commission (SEC) adopted a new rule requiring HCM disclosure by public companies. A variety of private standard-setting organizations have already developed detailed HCM reporting standards, which firms have started to adopt. Taken together, these developments represent a powerful and heretofore unprecedented push to incorporate worker-related concerns in corporate governance—a phenomenon I describe as an “HCM movement.” This Article presents a comprehensive analysis of the origins, impact, and normative desirability of the HCM movement with reference to the broader transformation of U.S. corporate governance and the often-ignored historical and comparative context.Subject to certain qualifications, the Article views HCM as a broadly positive and much-overdue corporate governance development: HCM disclosure contributes to more accurate firm valuation by shining a spotlight on a key driver of success in the modern knowledge-based economy; HCM oversight at the board level ensures that firms focus appropriately on the management of what has come to be referred to as a “mission-critical asset.” To realize HCM’s full promise, however, participants in the HCM movement should seek to disambiguate the HCM concept by breaking it down into its appropriate constitutive elements, and, to the extent possible, focusing the relevant discussions on those specific elements. In addition, boards should resist isomorphic approaches, particularly ones developed by organizations such as large asset managers that are lacking in regulatory legitimacy, accountability, and HCM expertise. The SEC can and should serve as a nexus for coordination among the various participants in the HCM movement. As an initial step, the SEC should revisit the HCM disclosure rulemaking process and reject the unstructured, “principles-based” approach reflected in the 2020 HCM disclosure rule, which is based on an impoverished understanding of the important concept of materiality. In its final part, the Article considers HCM’s limits as a solution to problems beyond the core concerns of corporate law and suggests that the rapid rise of the corporate governance HCM movement has in fact highlighted the need for a governmental human capital agenda aimed at the active development and protection of human capital, not just its management
Election Laws Disproportionately Disadvantaging Racial Minorities, and the Futility of Trying to Solve Today\u27s Problems with Yesterday\u27s Never Very Good Tools
Get PDFIn the final weeks leading up to the 2020 national election, scarcely a day seemed to pass without news of a challenge to, or court decision on, a state election law that, though race-neutral on its face, was likely to disproportionately disadvantage racial minorities. Sadly, state legislative activities since the election have offered little reason to believe that election laws disproportionately disadvantaging racial minorities are apt to become a thing of the past anytime soon. The number and variety of election laws disproportionately disadvantaging racial minorities have been on the rise for decades, and challenges to those laws on equal protection and other grounds have rarely been successful. Much of the credit—or, more accurately, blame—for the challengers’ distinct lack of success in seeking to invalidate such laws under the Equal Protection Clause goes to an approach to disproportionate racial impact that the U.S. Supreme Court developed in three decisions in the mid-to-late 1970s. Although that approach has significance for many areas of law besides election law, election law may well hold the dubious distinction of being the area of law in which the approach has done the most damage. After synthesizing the basic components of the Court’s approach, this Article discusses their practical implications in order to establish that the Court’s approach assigns little constitutional importance to disproportionate racial impact. The Article then argues that the Court’s assignment of little constitutional importance to disproportionate racial impact is at odds with the most basic understanding of the Fourteenth Amendment’s history as well as equal protection theory. After proposing an alternative approach under the Equal Protection Clause to disproportionate racial impact, the Article applies it to election laws disproportionately disadvantaging racial minorities. The Article concludes with some observations about the immediate and long-term importance of its proposed rethinking of equal protection constraints