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What You Need to Know About the Deal to Reform The Electoral Count Act
No full textThe Electoral Count Act was passed in 1887. And it had a lot of flaws, according to reform advocates. But a new bipartisan deal in Congress, led by Sens. Joe Manchin (D- W. Va) and Susan Collins (R-Maine), clarifies the role of the vice president and raises the threshold for challenging state electors.
Here & Now\u27s guest Miles Parks talks with election experts Ned Foley and Rebecca Green about the deal and what it means for the 2022 midterms and beyond
Faculty on Topic: Roe v. Wade
Get PDFConstitutional Law experts Allison Orr Larsen ’99 and Neal E. Devins from William & Mary Law School discuss the June 24, 2022 Supreme Court ruling that overturned Roe v. Wade
Balancing Liberty and Security: A Proposal for Amplified Procedural Due Process Protections in the U.S. Sanctions Regime
Get PDFThis Note will concentrate on procedural due process concerns stemming from the imposition of terrorist financing sanctions, and it will primarily discuss designated U.S. persons. This is a narrow focus, but it can be viewed as a microcosm for due process issues present throughout the broader IEEPA [International Emergency Economic Powers Act] regime. Ultimately, this Note will conclude that OFAC [Office of Foreign Assets Control]\u27s terrorist financing designation process inadequately protects the procedural due process rights of targets, and it will advocate for the implementation of additional procedural protections that balance undeniable constitutional requirements with the critical concern of national security.
This Note will be organized as follows: Part I will explore the broader background of sanctions, beginning with a short history of emergency powers in the United States, including the Trading with the Enemy Act (TWEA) and IEEPA. Additionally, it will outline the structure of the current U.S. sanctions regime and the process for implementing sanctions under IEEPA (with a particular focus on the role of OFAC in administering and enforcing sanctions). Lastly, Part I will explain the role of each of the three branches of the federal government in the sanctions framework and address a range of key concerns about IEEPA. Part II will (1) briefly discuss due process jurisprudence in the United States; (2) analyze key procedural due process cases in the sanctions realm, with a targeted focus on two issues: the use of classified information in the government’s designation decisions and the diminished right to notice and an opportunity to be heard; and (3) discuss the particularly severe impact of designation on individuals. Part III will begin with a discussion of recent criticisms of the U.S. sanctions process and will be followed by a detailed evaluation of the Department of the Treasury’s 2021 Sanctions Review. Finally, Part III will recommend amending both OFAC’s regulations and IEEPA to provide for more adequate procedural protections during the designation and deprivation process.
This abstract has been adapted from the author\u27s introduction
Title IX in Historical Context: 50 Years of Progress and Political Gamesmanship
Get PDFOn the fiftieth anniversary of Title IX, it is important to recognize both its historic nature and how it has evolved in political and social context. This Article will begin by examining the history of women’s athletics pre–Title IX, focusing on what activities women participated in, why, and how societal norms shaped their ability to do so. Next, the Article will examine the status of women’s athletic opportunities as Title IX was first proposed, with an emphasis upon its nexus to the women’s rights movement and the Equal Rights Amendment initiative. The Article will then provide historical background for key moments in the passage and application of Title IX, including specifically the Civil Rights Restoration Act of 1987, the role of the Office of Civil Rights and the approach of the various presidential administrations in enforcing Title IX. The Article will then assess key data metrics, such as the number of women in collegiate coaching and administrative positions prior to 1972, in 1997, and finally, in 2019, to determine the impact of Title IX upon coaching opportunities for women. The Article will conclude by recommending concrete steps that should be taken in the current social and political environment to address continuing inequities in opportunities for women in athletics
The Trump Clemencies: Celebrities, Chaos, and Lost Opportunity
Get PDFThe presidency of Donald Trump may have produced the most chaotic use of the constitutional pardon power in American history. Trump granted clemency to war criminals, to close friends, to celebrities, and to the friends of celebrities, with much of it coming in a mad rush at the end of his single term. Buried beneath this rolling disaster was a brief moment of hope and a lost opportunity: the chance for a restructure of the clemency process in the fall of 2018, enabled by a rare alignment of factors, including Trump’s alienation from the Department of Justice. This Article will explore the fullness of Trump’s clemency legacy and explore what was lost when a vehicle that could have helped stem over-incarceration died on the drafting table.
What follows is rooted in two personal experiences. The first was a series of meetings at the Trump White House, where I was asked to describe a better way of evaluating clemency petitions—advice that was ultimately rejected. The second experience has been, with the help of my students, reviewing clemency warrants and compiling data on what Trump ended up doing with the Pardon Power given to him by the Constitution. This analysis revealed not only troubling patterns in Trump’s clemency grants but also the tragedy of his failure to turn in a different direction through reform of the process he inherited.
Part One of this Article will describe the broken and mangled clemency evaluation system the Trump administration inherited together with a record number of unresolved petitions.
Part Two, in turn, will examine a near-breakthrough in the middle of Trump’s single term, when there seemed to be serious consideration given to real reform of the clemency process. A rare moment of opportunity presented itself, as the usual stumbling block for reform—the Department of Justice—was effectively sidelined, and there was an advocate for reform (Jared Kushner) within the President’s inner circle. The eventual rejection of proposed reforms by the Trump administration in favor of a more informal process planted the seeds for the chaos to come.
Part Three will delve into how Trump actually used the presidential pardon power. Trump deployed clemency unlike any of his predecessors: not only to reward friends (that had been done) but to serve and reward the traits he held most dear, such as loyalty, toughness, celebrity, and provocation, while disproportionately favoring those charged with crimes involving dishonesty. Part Four also addresses the patterns seen in the Trump clemency grants, particularly in terms of race and gender.
Early signals seem to show that Trump’s successor, Joe Biden, is reluctant to revamp the clemency evaluation system or use clemency systemically, compounding the tragedy of the Trump years. Clemency was meant to flow from positive values close to the hearts of Americans: mercy, redemption, and reconciliation. Trump’s abuses should lead us to reform the clemency review process and return to those values rather than abandon the tool by which they may be realized.
This abstract has been taken from the author\u27s introduction
A Tokenized Future: Regulatory Lessons from Crowdfunding and Standard Form Contracts
Get PDFThis Article examines the world of risk investing in the cryptoeconomy. The broader crypto market is booming despite the latest downturn. People and institutions are buying in. The question is now how to regulate it.
This Article first tackles the question of whether coins, tokens, and other investable cryptoassets are securities. Second, for those cryptoassets that are not securities, this Article seeks to find a regulatory solution that balances promoting innovation with investor protection, just as the Securities and Exchange Commission (SEC) would do. To strike the right balance, this Article adopts a proposal by Ian Ayres and Alan Schwartz for policing standard form contracts that accompany consumer product purchases. That is, crypto issuers would be required to include a short, prominent “warning box” on their websites that includes only unexpected and harmful features of the crypto. Coupled with the whitepapers already provided by crypto developers—a shining example of voluntary disclosure working—the warning-box add-on completes the crypto regulation picture and properly balances innovation and investor protection.
For well-known cryptos like bitcoin, nothing would be required in the warning box. Risks from investing in bitcoin, from environmental impact to price volatility, are generally understood. Tether developers, however, should have disclosed that their stablecoins were not fully backed by fiat currency reserves by using a warning box, and Ethereum developers should be disclosing that gas fees can be much higher than normal transaction fees investors may be accustomed to. This Article’s approach to crypto regulation favors market mechanisms over regulatory overreach in this emerging area