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The Failed Transparency Regime for Executive Agreements: An Empirical and Normative Analysis
No full textThe Constitution specifies only one process for making international agreements. Article II states that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." The treaty process has long been on a path to obsolescence, however, with fewer and fewer treaties being made in each presidential administration. Nevertheless, the United States has not stopped making international agreements. Even as Article II treaties have come to a near halt, the United States has concluded hundreds of binding international agreements each year. These agreements, known as "executive agreements," are made by the President without submitting them to the Senate, or to Congress, at all. Congress has responded to the rise of executive agreements by imposing a transparency regime - requiring that all the binding executive agreements be reported to Congress and that important agreements be published for the public to see.
Until now, however, there has been no systematic assessment of how well the transparency regime has been working. This Article seeks to fill that gap. Through a Freedom of Information Act lawsuit, we obtained thousands of documents relating to the agreements reported to Congress and the legal authority on which the executive branch has relied for these agreements. Together with a series of interviews with lawyers directly involved in the process, this new information has given us an unprecedented look inside the system of concluding, publicizing, and reporting executive agreements. For the first time, we can describe how the system for making and scrutinizing executive agreements actually works - and when and how it fails to work. The overall picture that emerges is one of dysfunction and nonaccountability. In brief there is reason to believe that the executive branch's reporting to Congress has been incomplete; the entire publication and reporting process is opaque to everyone involved, including executive branch officials and congressional staffers; and Congress is failing in its oversight role. The "system" is badly in need of repair if we are going to preserve the integrity and legality of the United States' primary means of making international commitments
The Peculiar Genius of Private-Law Systems: Making Room for Religious Commerce
No full textReligious commerce has long sat uncomfortably at the nexus of public law and private law. On the one hand, such transactions invariably have garden-variety commercial objectives, which are best achieved and regulated through the law of tort, contract, and property. And yet the intermingled religious aspirations of the parties often inject constitutional concerns that muddy the waters. To navigate these challenges, the Supreme Court famously embraced the neutral principles of law framework, which encouraged parties to draft private law agreements using secular terminology. Thus, while the Establishment Clause provided the outer
boundaries for what was legally possible, the neutral principles of law framework made space for religion under the umbrella of private law.
This equilibrium between public and private law, however, has become increasingly unsettled As the permutations of contracting for religion have proliferated, courts and scholars have searched for tools to regulate what they view as problematic outcomes. At the core of such criticisms is an instinct that judicial enforcement of privatized religious obligation whether in the form of religious contracts generally or religious arbitration specifically-undermines a principled commitment to separation of church and state. In turn, courts and scholars have reached into their constitutional toolboxes, searching for legal doctrines that might eliminate the kinds of outcomes they view as offending fundamental constitutional principles.
The goal of this Article is to argue that this public law instinct-the notion that regulating the field of religion and private law is best achieved through the expansion of constitutional prohibitions-is deeply misguided. And this is true not only for standard religious commerce, but also-and especially-for the religious commerce safety valve, religious arbitration. Ultimately, successfully merging religion and private law requires promoting doctrines that, on the one hand, address legitimate concerns, but do so without eliminating the very legal terrain made possible by the neutral principles of law framework. Failure to do so-and reflexively reaching into our constitutional toolbox-leaves both courts and scholars without the tools they need to meet these legal challenges
But Facebook’s Not a Country: How to Interpret Human Rights Law for Social Media Companies
No full textPrivate social media companies regulate much more speech than any government does, and their platforms are being used to bring about serious harm. Yet companies govern largely on their own, and in secret. To correct this, advocates have proposed that companies follow international human-rights law. That law–by far the world’s best-known rules for governing speech–could improve regulation itself, and would al-so allow for better transparency and oversight on behalf of billions of people who use social media. This paper argues that for this to work, the law must first be interpreted to clarify how (and whether) each of its provisions are suited to this new purpose. For example, the law provides that speech may be restricted to protect national security, as one of only five permissible bases for limiting speech. Governments, for which international law was writ-ten, may regulate on that basis, but not private companies which have no national security to protect.To fill some of the gap, the paper explains and interprets the most relevant provisions of international human-rights law–Articles 19 and 20 of the International Covenant on Civil and Political Rights, which pertain to freedom of expression–for use by social media companies, in novel de-tail
The Fiduciary Model of Privacy
No full textI. DIGITAL DEPENDENCE IN SURVEILLANCE CAPITALISM. In the digital age people are increasingly dependent on and vulnerable
to digital businesses that collect data from them and use data about them. These companies use data to predict and control what end users do, and to sell advertisers access to those end users. Digital companies invite people to trust them with their data. When people accept that offer of trust, they become vulnerable: to how the companies use their data, to companies' data security (or lack thereof), and to companies' choice to share or sell the data to others. Because of the vulnerability and dependence created by information capitalism, I have argued that the law should treat digital companies that collect and use end user data according to fiduciary principles. The law should regard them as information fiduciaries.
We rely on digital businesses to perform many different tasks for us. In the process, these businesses learn a lot about us - our likes, our dislikes, our habits, our movements, websites we visit, who we communicate with and when we do it, features of our bodies, even how we type on, click, and touch digital interfaces. Although digital companies know a lot about us, we do not know a lot about them - their operations, what kinds of data they collect, how they use this data, and who they share it with. Because of this asymmetry of information, we are especially vulnerable to them, and we have to trust that they will not betray our trust or manipulate us.
The problem is not simply asymmetry of information. Many companies design their interfaces to facilitate and encourage the disclosure of information, including information we may not even be aware we are disclosing. Simply moving around a city with a cell phone or other digital device may produce lots of information about us. Social media companies like Facebook design their interfaces to make it difficult to protect our privacy, burying privacy settings and making them confusing. They also use algorithms to monopolize our attention and keep us fixed to the site so that we will disclose even more information. Some companies have even taken a cue from casinos in figuring out how to addict their audiences
Detecting Mens Rea in the Brain
No full textMental states matter. Consequently, we and colleagues designed and executed a brain-imaging experiment attempting to detect-for the first time-differences between mental states relevant to criminal law.
Imagine you've just killed someone in Colorado. It was not your purpose or desire to kill him. Nevertheless, another human being is dead. Arrested and on trial, you do not dispute that your action unjustifiably caused his death. But whereas the prosecutor argues that you knew someone would die as an inevitable by-product of your actions, you assert in your defense that you knew no such thing. Instead (you claim) you were merely reckless. That is, you acted as you did with awareness of a substantial risk that someone
would be fatally injured, but without knowing you would kill anyone.
In Colorado, as in many states, there is a huge difference in the sentencing ranges for those convicted of knowing and reckless homicides. In Colorado it means the difference between being sentenced to sixteen to forty-eight years in prison and none.' So your fate rests in the hands of lay jurors who will decide what your mental state was at the time of the fatal act. Specifically:
Did you know you would kill someone, or were you merely aware of a risk that you would?
Now, any plausible theory of the point or purpose of meting out punishment to offenders-whether utilitarian, retributivist or expressivist -- will recognize good reasons to condition punishment, or its amount, on the offender's mental state. Mental states matter to the nature and severity of incentives to which human behavior is sensitive, to moral desert, and to society's collective outrage. But, whatever its rationale, the practice of predicating differences in punishment on differences in mental state means that you now face two large problems ignored by our current criminal justice system
The Heavy Hand of Amazon: A Seller Not a Neutral Platform
No full textSince the adoption of'Section 402A of the Second Restatement of Torts, every party in a product's distribution chain has been potentially liable for injuries caused by product defects. Consumers who buy from reputable sellers are almost always guaranteed to have a solvent defendant if injured by a product defect. Amazon, though responsible for a vast number of retail sales, has sought to avoid liability by claiming that it is not a seller but a neutral platform that merely facilitates third-party sales to consumers. With two significant exceptions, most courts have sided with Amazon and concluded that Amazon is not a "seller" under Section 402A. These courts have left injured consumers without a remedy against insolvent or fly by night third-party sellers. All of the decided cases have failed to examine the nuances and complexity of how Amazon does business. This Article puts the
lie to Amazon's claim that it is not a seller by demonstrating how Amazon controls third-party sales and hides its true role from consumers
The Private Equity Negotiation Myth
No full textPrivate equity fund agreements have been criticized for failing to protect investors from exploitation by fund managers. One defense frequently used by the industry has been to invoke what I call the private equity negotiation myth, which claims that because fund agreements are highly negotiated, substantive concerns about their terms are unwarranted. This myth assumes that large investors will use their bargaining power to demand strong fund agreement protections for all of the investors in a fund
Federal Grant Rules and Realities in the Intergovernmental Administrative State: Compliance, Performance, and Politics
No full textFederal grants are one of the government’s most important policy tools. While high-profile debates about constitutional coercion, entitlement reform, and budget cuts receive most of the public attention given to federal grants, a more prosaic but equally important reality describes the operation of these grants on the ground: the web of detailed rules and massive enforcement structure devoted to the administrative side of federal grants, which this Article refers to as “the grants-management regime.” Unacknowledged in the legal literature, the grants-management regime drives the implementation of federal grants and tells a very different story than the standard concern about feckless agency enforcement action of federal grants. That is, the powerful grantsmanagement regime creates strong incentives that unintentionally undermine grantees’ ability to accomplish the underlying policy purposes of their grants. By mapping out the rules and the institutional realities in relationships among congressional committees, the Office of Management and Budget, agencies, grantees, and auditors, the Article identifies unintended consequences that result from the grants-management regime and unwarranted assumptions on which the regime relies. The Article then develops reform options to improve the functioning of the system in light of the critical role federal grants play in contemporary American governance
Implementing U.S. Covid-19 Testing: Regulatory and Infrastructural Challenges
No full textAs COVID-19 cases continue to surge worldwide, more evidence is pointing towards asymptomatic transmission being a key driver of new infections, with studies showing it accounts for 17.9 to 30.8% of all infections. Regions that have managed to contain the virus have relied on social distancing and aggressive efforts to test as many people as possible. Unfortunately, delays in COVID-19 testing authorization and roll-out in the United States significantly hampered the country’s response to the pandemic. Within the first four months of the pandemic, only around 125 people per million had been tested in the US, in comparison to 5000+ people per million in South Korea. Although testing rates have improved since then, this initial lag in detection contributed to accelerated viral spread.
There were a few important reasons for the delays and challenges in the roll-out of COVID-19 testing in the United States. While FDA’s Emergency Use Authorization (EUA) protocol was created for such public health emergencies, this unprecedented pandemic has revealed weaknesses in both the administrative process and the national testing infrastructure. This article draws potential lessons from other countries in how to optimize the process of reviewing and disseminating diagnostic testing in a public health crisis