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Fairness Writ Large or Small in International Criminal Justice
Full text linkFor this symposium, I was not assigned to talk about Megan [Fairlie]’s work per se, and so I initially planned to discuss something completely different. In the end, however, I came back to Megan’s work because I believe her scholarship provides a new way of thinking about the entrenched challenges currently facing our collective field of study: international criminal law and procedure.
As we all know, Megan was an accomplished comparativist, and her area of expertise was criminal procedure. Even more particularly, Megan specialized in the criminal procedure of the still relatively new international criminal courts and tribunals. She focused on many topics—some broader, some more narrow—but throughout these topics and the articles containing them, Megan’s primary concern and her primary directive was fairness. In countless articles and book chapters, Megan identified flaws in international criminal procedural rules and practices, and she advanced proposals that would ameliorate, if not remedy, those flaws. In doing so, Megan expressly employed the language of fairness. As an overall matter, Megan was concerned about the fairness of blending adversarial and non-adversarial procedures, but her emphasis on fairness trickled down to discussions of individual topics. Whether it was the prosecution’s objectivity obligation, the submission of evidence without a ruling on admissibility, or the ICC’s sub-optimal jurisprudence on no-case-to-answer motions, Megan emphasized the compelling need to ensure a defendant’s fair trial rights. Indeed, in one of her final articles, Defense Issues at the International Criminal Court, Megan passionately exhorted ICC observers to “commit to unwavering fair trial expectations.”
This abstract has been taken from the author\u27s opening paragraphs
Real Housewives & Real Crimes: The Implications of Broadened Privacy Rights on White-Collar Offenses
Full text linkReality television stars turn their fame into fortune, often blurring ethical lines as they exploit their platforms for personal gain. These personalities engage in fraud, tax evasion, and embezzlement, all while maintaining a prominent presence on-screen. Specifically, stars on The Real Housewives franchise realize tremendous successes from their stints on the famous television show by capitalizing on their exposure through social media. With their newfound wealth and fame, many of these stars commit white-collar crimes under their viewers’ watchful eyes. This Note examines three prevailing examples of reality television stars who committed various white-collar crimes. Interestingly, networks tolerate criminal behavior because the contractual relationship with their talent permits the companies to collect royalties from a star’s business ventures. Although contractual relationships require a star to discuss their legal matters on television, stars are becoming savvy in their ability to call on privacy laws to limit their negative exposure. As technology exploitation and constitutional concerns continue to rise, the courts and state legislatures attempt to balance an individual’s right to privacy with public interest in acquiring important information. This Note proposes that courts and the legislature should resist broadening privacy protections to reality television stars who commit white-collar crimes by exploiting their platforms
\u3cem\u3eBostock\u3c/em\u3e and the Limits of Textualism: A Doctrinal Structuralist Approach
Full text linkIn Bostock v. Clayton County, the Supreme Court held that Title VII prohibits discrimination based on sexual orientation or gender identity. This result, the majority claimed, was required by the interpretive theory called textualism. But textualist Justices in the dissent vehemently disagreed. This split, and the controversy that has followed it, has had two consequences. First, it added fuel to the ongoing debate about the value of textualism. Second, it opened the door for lower courts to decline to apply Bostock to similar antidiscrimination laws, such as Title IX in education or the Equal Protection Clause.
This Article argues that the problem with Bostock is not textualism. Rather, the problem is ungrounded textualism—a textualism that assumes an unlimited number of ways judges can frame interpretive questions and answer those questions.
This Article proposes doctrinal structuralism as a remedy to that problem. Doctrinal structuralism maps the basic structure of an area of the law, such as the area of disparate treatment anti-discrimination law at issue in Bostock, and uses that structure to identify and limit the questions that are subject to interpretation in the area, as well as the universe of doctrinal answers from which a court can choose. Such an approach not only reduces judicial discretion; it also illuminates which aspects of a decision such as Bostock are interpretive (and thus subject to different interpretations between laws) and which are logical (and thus applicable to any law that incorporates the same structural choice). Based on this analysis, this Article concludes that Bostock’s core conclusion is a logical one, not an interpretive one, and must therefore apply to other laws with structures similar to Title VII. Moreover, even if Bostock’s logic was incorrect or incomplete (which it was), so long as its conclusion can be supported by better logic (it can), then that conclusion should apply across texts.
This Article uses doctrinal structuralism in a novel way to undertake three projects. First, it evaluates the reasoning of Bostock and finds it reaches the right conclusion for the wrong reason. It then demonstrates the applicability of Bostock outside of Title VII. Finally, it highlights the benefits of doctrinal structuralism as a partner to interpretive methods such as textualism
Public Protest and Civil Unrest
Full text linkGovernments and officials must respond to protest-related civil unrest. How they do so is both an index of official respect for dissent and a measure of how committed governments are to democratic accountability. This Article examines official responses to civil unrest in connection with several recent high-profile demonstrations. In general, it concludes that governments and officials have relied on aggressive and increasingly draconian measures to quell protest-related civil unrest. Among other things, they have invoked emergency powers and used aggressive protest policing methods; dispatched federal agency personnel and threatened to deploy military forces to police demonstrations; enacted successive waves of laws that broaden riot offenses, increase penalties for minor offenses and acts of civil disobedience, and restrict campus protest; and charged protesters with domestic terrorism and racketeering. Officials have an obligation to maintain public order and safety. However, the recent pattern constitutes troubling evidence of democratic backsliding. Both contemporaneous and subsequent responses to protest-related civil unrest jeopardize even lawful public protest, disproportionately punish acts of civil disobedience, and imperil a long tradition of campus activism. In response, the Article offers a broad reform agenda that includes demystifying the government’s emergency powers, deescalating protest policing, defederalizing responses to local unrest, repealing or narrowing public order offenses, considering the proportionality of charges and sanctions for protest-related offenses, preserving campus protest, and ensuring neutral and consistent responses to protest-related civil unrest
William & Mary Business Law Review Best Student Note Award
No full texthttps://scholarship.law.wm.edu/studentplaques/1129/thumbnail.jp
Never Waste a Crisis
No full textThe International Covenant on Civil and Political Rights allows states to suspend certain rights during emergencies, but only if necessary. Evan Criddle says that in the past 25 years, American presidents have invoked emergency powers with increasing frequency. And those measures have been deeply controversial
Rethinking Sovereign Veil-Piercing
Full text linkThis Article undertakes a wholesale reassessment of the sovereign veil-piercing framework created by Bancec, a landmark U.S. Supreme Court case. The Bancec framework limits foreign states’ ability to insulate themselves from accountability by acting through corporate entities. Plaintiffs often need to satisfy Bancec to secure jurisdiction over sovereigns or enforce rulings against them, but rarely succeed. The Author argues that one reason why is that lower courts are reading the case too narrowly. Specifically, some courts are conflating the Bancec framework with the more restrictive alter ego doctrine. In addition, some courts are insisting on certain formal indicia of agency to justify attributing conduct from a controlled entity to a state, which Bancec itself did not contemplate. Finally, some courts are improperly exempting states’ sovereign acts from scrutiny in their analyses, creating a gaping loophole. This Article rethinks all of these approaches, drawing on extensive authority under both U.S. and international law that lower courts and other scholars have largely overlooked. If adopted, its proposals could transform plaintiffs’ prospects for recovery in a wide range of cases, from clergy abuse lawsuits to arbitration award enforcement proceedings
Valuing Worker Authenticity
Full text linkTitle VII of the Civil Rights Act of 1964 protects workers from discrimination because of their race, color, religion, sex, or national origin. Controversially, courts do not typically extend this protection to individual expression tied to a protected trait, such as a Black employee who wears their hair in dreadlocks or a Latino employee who speaks Spanish on the job. Judicial unwillingness to protect employee self-expression tied to a protected trait causes employees who identify with marginalized groups to suppress their identities to conform with mainstream culture—often at tremendous costs to themselves and the organizations they work for.
This Article argues that regardless of how courts interpret Title VII, employers generally should encourage employees to express their authentic selves at work. This is because we now live in an age when many employees, especially millennials and Generation Z, are no longer content to check their personal lives at the workplace door; instead, they expect to bring their whole, authentic selves to work. Research confirms that employees who are free to display their authentic selves are better engaged, harder working, more satisfied, and less likely to quit—outcomes that boost productivity, and ultimately, profitability. Given these known benefits, employers would be wise to embrace, not suppress, worker authenticity in most instances.
Of course, worker authenticity cannot go unchecked. Self-expression may be counterproductive or even dangerous in some instances. In determining the reasonable limits of worker self-expression, employers should look to the Supreme Court’s recent decision in Groff v. DeJoy for guidance. There, the Court held that employers must accommodate employees with religious conflicts unless doing so would result in “substantial increased costs” to their business. Just as this test allows employers to ascertain the proper limits to religious expression in the workplace, so too can it help them determine the appropriate scope of worker authenticity. Encouraging employees to express their authentic selves within Groff’s parameters would benefit employees and employers alike, while safeguarding workplaces from potential abuses that could occur if self-expression goes unchecked