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Anticipating the Impact of the White House's Blueprint for a Renter Bill of Rights
No full textThe article focuses on a Blueprint for a Renter Bill of Rights released by U.S. President Joe Biden's administration which provides statistics on the state of the U.S. rental market. Topics include an increase in the average rents in the country from February 2021 to 2022 cited in the document and a set of principles to drive action by federal government, state and local partners and the private sector laid out in the blueprint to strengthen tenant protection and encourage rental affordability
The Whistleblower Industrial Complex
No full textVol. 40:688Although the whistleblower programs (WBPs) created by Dodd-Frank have received universal acclaim, little is known about how they actually work. In 2021, the Securities and Exchange Commission (SEC) received an average of forty-nine whistleblower tips every workday. Success depends on sifting through this avalanche of tips to determine which ones to investigate. To date, however, the tip-sifting process has been entirely shrouded in secrecy.
This Article breaks new ground. It offers a rare look inside the WBPs administered by both the SEC and the Commodity Futures Trading Commission (CFTC), shining a bright light on the critical role played by private whistleblower attorneys in the tip-sifting process. Using a new dataset comprised of information I obtained under the Freedom of Information Act, I find (among other things) that tipsters represented by lawyers appear to significantly outperform unrepresented ones, repeat-player lawyers appear to outperform first-timers, and lawyers who used to work at the SEC appear to outperform just about everybody.
The upshot is that the SEC and CFTC have effectively privatized the tip-sifting function at the core of the WBPs. Private lawyers have earned hundreds of millions of dollars in fees from these programs, with a disproportionate share going to a concentrated group of well-connected, repeat players. Unlike traditional plaintiff-side securities attorneys and attorneys who represent clients seeking government payments in many other contexts, private whistleblower lawyers operate free from virtually all public accountability, transparency, or regulation. I highlight significant efficiency and accountability deficits imposed by this private outsourcing program and propose reforms to realign these private actors with the public interest
The Promise & Perils of Open Finance
No full textVolume 40, Issue 1We are at the dawn of a new age of Open Finance. Open Finance seeks to harness the potential of new platform technology to enhance customer data access, sharing, portability, and interoperability—thereby leveling the informational playing field and fostering greater competition between incumbent financial institutions and a new breed of financial technology (fintech) disruptors. According to its proponents, this competition will yield a radical restructuring of the financial services industry, offering more and better choices for consumers looking to make fast payments, borrow money, invest their savings, manage household budgets, and compare financial products and services. The promise of Open Finance is very real. Yet its proponents have largely ignored the economics driving the development of the key players at the heart of this new infrastructure: data aggregators.
Data aggregators are the connective tissue of Open Finance—the pipes through which most of this valuable data flow. Like other types of infrastructure, these pipes are characterized by economies of scale and network effects that erect substantial barriers to entry, undercut competition, and propel the market toward monopoly. In the United States, these dynamics are compounded by the highly fragmented structure of both the conventional financial services industry and the emerging fintech ecosystem. The result is an embryonic market structure in which a small handful of data aggregators have a massive head start, and where one company in particular—Plaid—already enjoys a dominant market position. This Article describes the promise and perils of Open Finance and explains how policymakers can tap into its potential while simultaneously preventing the abuse of monopoly power and avoiding the creation of a new strain of too-big-to-fail institutions
The 21st Century National Security Constitution
No full textEven as the Biden Administration’s foreign policy unfolds, in 21st Century
practice, foreign relations law seems to have largely become national security
law. Virtually all foreign affairs issues have been reframed into national security
terms. And because so much of foreign affairs law seems to have become justification
for unilateral exercises of executive power, at times it seems almost like
not law at all. This Keynote Address, based on a forthcoming book, describes
the synergistic dysfunction among our national security institutions that has
fostered these trends, explains why the major academic debates over foreign
relations law have missed this most urgent issue, and suggests ways to slow the
steady march toward executive unilateralism
The Rise of Nonbinding International Agreements: An Empirical, Comparative, and Normative Analysis
No full textThe treaty process specified in Article II of the Constitution has been dying a slow death for decades, replaced by various forms of "executive agreements." What is only beginning to be appreciated is the extent to which both treaties and executive agreements are increasingly being overshadowed by another form of international cooperation: nonbinding international agreements. Not only have nonbinding agreements become more prevalent, but many of the most consequential (and often controversial) U.S. international agreements in recent years have been concluded in whole or in significant part as nonbinding agreements. Despite their prevalence and importance, nonbinding agreements have not traditionally been subject to any of the domestic statutory or regulatory requirements that apply to binding agreements. As a result, they have not been centrally monitored or collected within the executive branch, and they have not been systematically reported to Congress or disclosed to the public. Recent legislation addresses this transparency gap to a degree, but substantial gaps remain. This Article focuses on the two most significant forms of nonbinding agreements between U.S. government representatives and their foreign counterparts: (1) joint statements and communiques; and (2) formal nonbinding agreements. After describing these categories and the history of nonbinding agreements and their domestic legal basis, the Article presents the first empirical study of U.S. nonbinding agreements, drawing on two new databases that together include more than three thousand of these agreements. Based on this study, and on a comparative assessment of the practices and reform discussions taking place in other countries, the Article considers the case for additional legal reforms
BEYOND THE PERSONAL BENEFIT TEST: THE ECONOMICS OF TIPPING BY INSIDERS
No full textRecent insider trading cases reveal a stark conceptual divide between the federal courts and the U.S. Securities and Exchange Commission (SEC) regarding liability for securities fraud in cases in which an insider (a "tipper") gives material non-public information to a market professional or close friend or other potential trader (a "tippee"). Following the landmark Supreme Court case called Dirks v. SEC, the federal courts do not impose liability on tippers or tippees unless the tipper receives a consequential personal benefit or is a close friend or relative of the tippee. The SEC abjures this "personal benefit" requirement, and would define the concept of personal benefit so broadly as to remove it as an impediment to insider trading prosecutions. This Article explains the economic function of the personal benefit test as establishing the criterion upon which legitimate trading on the basis of material non-public information can be distinguished from venal or corrupt trading. The Article shows that the personal benefit test, while a valuable innovation to insider trading jurisprudence, is severely limited because it does not capture all of the various motivations that cause insiders to convey material non-public information to traders. This Article fills that gap by providing a complete taxonomy of tipping and trading, and explaining the legal consequences of all of the various forms of insider trading
Refugee Detention As Constructive Refoulement
No full textVol. 48The most fundamental obligation that states owe to refugees under the 1951
United Nations Convention Relating to the Status of Refugees is the commitment
of non-refoulement. This commitment to “not force back” a refugee to a country
where she may face serious harm to her life or liberty demands that states
interrogate whether their treatment of refugees comports with their legal
obligations toward these individuals. One urgent site for inquiry is the
widespread practice of immigration detention. The practice of immigration
detention raises human rights concerns, including the stripping of due process,
the lack of individualized assessment, and the arbitrary deprivation of liberty.
In the United States, the detention of refugees presents an apparent
contradiction: the state posture is one of respect for rule of law and its legal
obligation of non-refoulement, yet perversely, the country detains refugees in
such intolerable conditions and with such limited access to legal counsel that
their chances at winning asylum are slim to none. The result is a pandemic of
asylum denials and deportations of asylum-seekers. This Article identifies and
describes this dissonance and offers a potential framework for thinking about a
legal remedy.
Drawing on an analysis of the human rights violations in the United States’
practice of migrant detention, this Article presents a framework for a legal
concept as yet untested in U.S. case law: constructive refoulement. Constructive
refoulement arises when a state orchestrates material conditions so intolerable
for an asylum-seeker that she has no choice but to return to the country from
which she fled. This Article characterizes the refugee detention regime in the
United States as anarchic, violative of due process, and morally corrupt. Such a
characterization also demonstrates that the refugee detention regime breaches
international and domestic law obligations. Ultimately, the United States’
practice of detaining refugees frustrates the intent of asylum-seekers to pursue
protection and thereby amounts to constructive refoulement in violation of
international law
Feminist Jurisprudence in Tribal Courts: An Untapped Opportunity
No full textVol. 34.2:80What if every gendered legal issue was not burdened by over 200 years of patriarchal and racist precedent? How would feminists craft legal practices and structures in a way that would be grounded by a clear understanding of the harms of oppression and subjugation? These questions are not just rhetorical; this essay argues that a fresh perspective is possible in the context of an Indigenous feminist jurisprudence. Indigenous feminist legal theory (IFLT) is in its nascent stages as a contemporary academic
discipline and praxis. It has largely been elucidated by legal scholars in Canada, including Emily Snyder, Val Napoleon, and John Borrows. Snyder explains that IFLT lies at the intersection of feminist legal theory, Indigenous feminist theory, and Indigenous legal theory
GUIDED BY HISTORY: PROTECTING THE PUBLIC SPHERE FROM WEAPONS THREATS UNDER BRUEN
No full textSince the Founding era, governments have banned guns in places where weapons
threaten activities of public life. The Supreme Court reaffirmed this tradition of
“sensitive places” regulation in District of Columbia v. Heller, and locational
restrictions on weapons have become a central Second Amendment battleground in
the aftermath of New York State Rifle & Pistol Association v. Bruen. Liberals have
criticized Bruen for requiring public safety laws to mimic founding practice, while
conservatives have criticized it for licensing regulatory change not within the original
understanding. In this Essay we argue that Bruen’s analogical method looks to the
past to guide change in weapons regulation, not to foreclose change. We illustrate
the kinds of sensitive-place regulations Bruen authorizes with examples spanning
several centuries, and close by demonstrating—contrary to recent court decisions—
that a 1994 federal law prohibiting gun possession by persons subject to a domestic
violence restraining order is constitutional under Bruen.
Where some imagine the past as a land of all guns and no laws, this Article shows
how weapons regulation of the past can guide public safety regulation of the present.
Governments traditionally have protected activities against weapons threats in sites
of governance and education: places where bonds of democratic community are
formed and reproduced. We argue that Bruen’s historical-analogical method allows
government to protect against weapons threats in new settings—including those
of commerce and transportation—so long as these locational restrictions respect historical tradition both in terms of “why” and “how” they burden the right to keep
and bear arms.
At the heart of this Article is a simple claim: That Bruen’s analogical method enables
public safety laws to evolve in step with the gun-related harms they address. Bruen
does not require the asymmetrical and selective approach to constitutional change
practiced by some in its name. Just as Bruen extends the right of self-defense to
weaponry of the twenty-first century, it also recognizes democracy’s competence to
protect against weapons threats of the twenty-first century.
We apply these principles to demonstrate the constitutionality of the federal law
prohibiting gun possession by people subject to a domestic violence restraining order,
which the Supreme Court is currently considering in United States v. Rahimi
HOW "HISTORY AND TRADITION" PERPETUATES INEQUALITY: DOBBS ON ABORTION'S NINETEENTH-CENTURY CRIMINALIZATION
No full textIn this Commentary, I show how the tradition-entrenching methods the Court employed to decide New York State Rifle & Pistol Ass'n, Inc. v. Bruen and Dobbs v. Jackson Women's Health Organization intensify the gender biases of a constitutional order that for the majority of its existence denied women a voice in lawmaking and restricted women's roles. The tradition-entrenching methods the Court employed to decide Bruen and Dobbs elevate the significance of laws adopted at a time when women and people of color were judged unfit to participate and treated accordingly by constitutional law, common law, and positive law. The methods the Court employs are gendered in the simple sense that they tie the Constitution's meaning to lawmaking from which women were excluded and in the deeper sense that the turn to the past provides the Court resources for expressing identity and value drawn from a culture whose laws and mores were more hierarchical than our own. Sampling their recent opinions, Part II of this Commentary shows that the conservative Justices have repudiated past practices when those practices expressed racism or nativism to which the Justices objected. Yet, Part III of this Commentary shows that in Dobbs the conservative Justices embraced past practices as the nation's history and tradition, counting abortion bans enacted with the support of the nineteenth-century antiabortion campaign without scrutinizing evidence that the campaign mixed arguments for protecting unborn life with arguments that banning abortion would prevent ethnic replacement and would enforce wives' marital and maternal roles. In Part IV, I suggest that Justice Alito might have refused to defer to prejudice of the past as he did in Espinoza v. Montana Department of Revenue if he saw religious liberty, rather than abortion rights, at stake. There are several reasons for revisiting the claims about abortion, history, and tradition on which the Dobbs decision rests. Even if the Supreme Court itself never acknowledges Dobbs's selective and inaccurate account of the historical record, as it acknowledged historical errors of Bowers v. Hardwick in Lawrence v. Texas, there is value in recognizing that the Court's claims about the past have a politics. In demonstrating that the Court selectively defers to the past, this Commentary shows how the Court's history-and-traditions method provides new justifications for enforcing old forms of status inequality. This Commentary builds the historical record critical to debates over the criminalization of abortion in state courts and legislatures. And it contributes to Professor Melissa Murray's remarkable and wide-ranging account of how the jurisprudence of Bruen and Dobbs is gendered: Children of Men: The Roberts Court's Jurisprudence of Masculinity