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Human Rights, Human Duties: Making a Rights-Based Case for Community-Based Restorative Justice
Get PDFRestorative justice is often framed as an alternative to the criminal legal system, and thus justifications of restorative justice tend to be rooted in the language of the criminal system. However, this approach limits our way of thinking about the practice of restorative justice, especially non-state, community-based practices. This Article argues for an independent, rights-based justification to support these community-based practices. By offering an in-depth analysis originating from a rights-based perspective, this Article engages with two underdeveloped areas of scholarly literature and suggests a new way of thinking about the day-to-day practice of restorative justice through a human rights lens. First, it takes a step towards filling the relative absence of robust analysis exploring modern day-to-day restorative justice—as opposed to the transitional justice or purely indigenous justice mechanisms—from the perspective of human rights law. Second, it engages with the relatively neglected discourse on non-state individual and community duties to promote human rights and joins the voices arguing for the recognition of such duties. Third, this Article theorizes the content of the dignity claim held by parties who have been harmed or committed harm. It then develops the corresponding duty to promote human dignity after an interpersonal harm has been committed. This Article concludes by arguing that this duty is at least partially fulfilled by community-based restorative justice practices. When engaging in these practices, duties are mainly borne by individuals and nonstate communities, with the state bearing duties to permit and support such practices, to the extent those practices meet their ethical obligations, as well as to meet certain needs
Making Money Green: A Proposal for a Sustainable Stock Exchange
Get PDFInvestors crave sustainable business data as a lucrative indicator of long-term business success, yet this demand is not being met by current environmental, social, and corporate governance (“ESG”) investment portfolios, voluntary business disclosure reports, or the Securities and Exchange Commission’s (“SEC”) climate-related rule proposal. Instead, an alternative, voluntary stock exchange premising entry upon satisfaction of industry-specific ESG prerequisites, would directly connect investors with the sustainable investments they desire without requiring them to interpret dense scientific data and decipher which companies exercise positive business practices.
This Article demonstrates that creating an alternative stock exchange for trading solely sustainable businesses would provide a mechanism to allow investors to back companies that align with their values and enforce compliance with preset sustainable business standards, going beyond mere disclosure requirements while avoiding the political influence and mandated capital compliance costs associated with rules implemented by the SEC
Crypto-Counterfeiting
Get PDFThe current crypto winter has given rise to a range of legal challenges. One of the most important sets of legal challenges goes to the heart of cryptocurrency. Cryptocurrency was intended to be non-duplicatable at will, that is, not to be counterfeitable. Blockchain technology is supposed to prevent token counterfeiting through a combination of game theory and cryptography that prevents normal users from simply ordering the system to generate more tokens for their benefit.
The difficulty is that blockchain software is still software. People in charge can order and program the software to generate many more tokens for those individuals’ benefit. Hackers can find ways to exploit the software to generate counterfeit tokens. Software will never be free from bugs and exploits, and humans with discretion within a system will always be susceptible to the temptations of power and greed.
Given the strong technological restraints on digital duplication of cryptocurrency and other crypto assets, many organizational structures and cultures surrounding cryptocurrency are set up particularly poorly to handle the problem of crypto-counterfeiting. Often in an attempt to avoid legal sanction, blockchain projects are set up in such a way that no legal entity controls the software. This is because there is a widely perceived vulnerability in having any single entity control a blockchain. Such a legal entity may be targeted for enforcement purposes in a murky regulatory climate.
When someone duplicates cryptocurrency, the harm is easily articulated: the duper has decreased the value of the cryptocurrency, and everyone else’s holdings, by virtue of having generated for themselves many more of the tokens. Similarly, the solution is fairly straightforward. The duped currency must be deleted in order to restore the value of the entire system. The difficulty is that legal rules must evolve in the face of the narratives crypto communities share and hold. In a fully decentralized system, who should be the plaintiff? If a token has been improperly generated, whose property has been stolen or converted?
Blockchain was supposed to solve the problem of asset duplication, referred to in blockchain circles as the double-spending problem, or in more recent incidents, an “infinite mint” attack. Ironically, it did not. Rather, blockchain created a difficult set of legal problems that this Article attempts to address. The future of the law in this space is clear. Wrongful generation of tokens will be sanctioned by courts with the remedy of deletion of those tokens. But the legal problems presented will benefit from clarification, and the precommitments of the communities that make those arguments do nothing to reduce the difficulty of the legal fit
SEC Enforcement: Balancing Deterrence with Due Process. Hearing Before the Committee on Financial Services Subcommittee on Capital Markets, House, One Hundred Eighteenth Congress, Second Session.
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Mercy for the Masses: A Default Rule for Automatically Triggered Commutations
Get PDFThis Essay considers how governors who are interested in reducing mass imprisonment can provide “mercy for the masses” who are in the middle of the criminal justice punishment spectrum. It draws on the successful mass pardons for misdemeanor marijuana offenses, as well as the aspects of the Obama Clemency Initiative that worked well. The proposals that follow offer four variations on a default rule for automatic, but modest, mass commutations.
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This Essay proceeds as follows. First, Part I explains how the modern clemency power has often been focused on death penalty cases and low-level misdemeanors. Part II then recounts how most of the people incarcerated in the United States are there for run-of-the-mill “ordinary” felonies and that those crimes have historically not received clemency. Finally, Part III describes four proposals to flip the current state of affairs from individualized decision-making to a default rule of mass commutations.
This abstract has been taken from the author\u27s introduction
Symposium Introduction: The Effect of \u3cem\u3eDobbs\u3c/em\u3e on Work Law
Get PDFIn March 2023, Chicago-Kent College of Law hosted a symposium—The Effect of Dobbs on Work Law—to explore the ways that the Dobbs abortion decision has affected the workplace. The presenters at that live symposium wrote articles that are being published in this journal. As the host of the symposium and the Editor of this Journal, I use this Article to introduce the articles in this symposium issue and to provide my reflections on them. I also briefly address the topic that I presented at the symposium—the effect of Dobbs on people with disabilities
Mother vs. Father: The Right to the Naming of Children in the United States and Australia
Get PDFIn England, surname use was at one time quite variable and individualized. This was particularly true for women, who historically held individualized surnames reflecting their specific traits, occupations, statuses, or family relations. Women sometimes retained their birth names at marriage and passed those names on to their husbands and children. But these diverse surname practices eventually disappeared from practice and from collective social memory in England. The new restrictive inherited practice then became highly entrenched in both Australia and the United States, with the latter seeing not only social but legal forces arising to enforce it. Legal battles eventually arose concerning the scope of women’s right to surname autonomy, particularly in the United States. These conflicts extended to the naming of children in the latter half of the twentieth century.
Women in both Australia and the United States now have a recognized right to retain their birth names after marriage. However, when it comes to the naming of children in the event of disagreement between the parents, analysis of statutes and court cases involving child surname disputes reveals that women’s rights are still legally secondary to those of men in the United States, often in effect and sometimes even directly by law. The same is much less true of Australia, where women regularly prevail in such cases.
While each nation ostensibly applied the same English common law in the application of surname requirements, both judicial interpretation of the legal requirements and empirical results of those interpretations are strikingly at odds with each other. This reveals the volatility and subjectivity of what is ostensibly a consistent and reasonably objective common law system
Immoderate Moderation: Chief Justice Roberts\u27s Concurrence in \u3cem\u3eDobbs\u3c/em\u3e
Get PDFChief Justice John Roberts attempted to chart a middle way in Dobbs v. Jackson Women’s Health Organization. But there are times when you must choose a side. This was one of them.
The Chief Justice has been a consistent proponent of judicial restraint since he joined the United States Supreme Court in 2005. For him, one of the key characteristics of restraint is deciding no more than necessary to resolve a case. In Dobbs, he insisted that the Court did not need to overrule Roe v. Wade and Planned Parenthood v. Casey in full to uphold Mississippi’s fifteen-week abortion ban, but merely could excise the Roe and Casey rule that viability is the critical dividing line in balancing a woman’s putative right to choose abortion against a State’s interests in curbing the procedure. According to the Chief Justice, the Court could have ruled in Mississippi’s favor and yet preserved the basic right that the Roe Court found in the Constitution, a right he claimed that—at least for now—“should . . . extend far enough to ensure a reasonable opportunity to choose, but need not extend any further.”
Chief Justice Roberts maintained that the Court could have disposed of viability “under a straightforward stare decisis analysis.” Curiously, though, he did not refer at all to his missive on stare decisis in Citizens United v. FEC. There, he wrote in concurrence that “[s]tare decisis is a doctrine of preservation, not transformation.” Ignoring this fundamental principle in pursuit of judicial restraint and moderation, the Chief Justice in Dobbs advocated for a decision that would have been neither restrained nor moderate.
Despite the Chief Justice’s protestations to the contrary, to decide in Mississippi’s favor, the Court would have had to have done more than just excise viability from Roe and Casey. Perhaps the Chief Justice did not recognize it, but even he was advocating for more, urging the Court to introduce a brand new “reasonable opportunity” rule into its abortion jurisprudence.
This Article critically examines Chief Justice Roberts’s concurrence in Dobbs, focusing in particular on the effect of merely removing the gestational-based features the Roe and Casey Courts used in articulating their holdings and constitutional tests. The Article also describes the havoc the Court would have wrought if the Chief Justice had convinced just one of the Justices in the majority to join his concurrence. And the Article concludes with a plea for judges to decide cases by applying principles of judicial restraint consistently and not artificially to manufacture a result
