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Failing to See What\u27s in Front of Our Eyes: The Effect of Cognitive Errors on Corporate Scandals
Get PDFWhy do we believe flim-flam artists so readily, especially in the business and commercial realm? This Article explores four reallife versions of “The Emperor’s New Clothes” fable—FTX, WeWork, Theranos, and a former bankruptcy judge’s hidden romance— and asks why people bought into the hype. Where were the warning signs, and how might we better spot those signs in the future
Excluded but Equal
Get PDFWork law is excessively exclusionary. Canonical examples include agriculture workers, independent contractors, and domestic workers. But work law excludes far more workers and employers than those familiar categories. Whole sectors, occupations, business sizes, wage arrangements, geographical areas, and more are excluded from the basic tenets of economic citizenship, including federal, state, and local minimum wage; overtime; and safety and labor protection laws.
Equal protection claims govern the authority of legislatures to determine who is in and who is out of work laws. Excluded workers and included employers now routinely use state and federal constitutional equal protection arguments against exclusionary work laws. Such claims, fail or succeed, tie the contours of equal protection doctrine with the jagged border lines of work law.
By describing the effects of equal protection doctrine on work law’s exclusions, this Article offers a path for bending the arc of equal protection doctrine toward inclusion. Doctrinal and institutional changes to how equal protection is administered can create small-scale and radical inclusive shifts in work law writ large
The Administrative Law Process
No full textReference librarian Frederick W. Dingledy describes the process federal administrative agencies use when creating regulations.
Please note: the video is best viewed at 720p. This setting can be adjusted by clicking the HD icon at the bottom of the video screen
Aggressor Status and Its Impact on International Criminal Law Case Selection
Get PDFThe laws of war apply equally to all parties to a conflict; thus, a party that violates international law by launching a war is granted the same international humanitarian law rights as a party that is required to defend against the illegal war. This doctrine—known as the equal application doctrine—has been sharply critiqued, particularly by philosophers, who claim the doctrine to be morally indefensible. Lawyers and legal academics, by contrast, defend the equal application doctrine because they reasonably fear that applying different rules to different warring parties will sharply reduce states’ willingness to comply with the international humanitarian law system as a whole. In the two works on which this symposium contribution is based, I have sought to bridge this divide by shifting focus from the application of international humanitarian law rules to the enforcement of those rules. In particular, I developed “the unequal enforcement doctrine,” which would retain the equal application doctrine but would reduce its unfairness by disproportionately prosecuting international criminal offenders from aggressor states. I have developed and defended that doctrine in two full length law review articles, and I have applied the doctrine retrospectively to prosecutorial decisions made in the International Criminal Court (“ICC”) situations. As a result of this analysis, I maintain that although ICC prosecutors did not expressly consider the aggressor status of parties to the conflict when selecting cases, that status has likely been influencing prosecutorial decisions all along, sub silentio. The analysis thus supports my claim that who started a war matters intuitively and profoundly and that the answer to that question has significantly impacted international criminal prosecutions. This piece summarizes my two law review articles
Issues
Get PDFThe Federal Rules of Civil Procedure have issues—148 issues to be exact. Although the Rules use the term “issue” throughout their text, they do not use it in the same way each time. In some circumstances, the meaning of “issue” is made clear by surrounding context, minimizing any interpretive difficulty. But sometimes context does not clarify the term’s meaning, creating interpretive challenges. This Article argues that the ambiguous term “issue” found in Federal Rules of Civil Procedure 50 and 52 is best read to mean a “dispute of fact.” This reading best comports with judicial interpretations of Rules 50 and 52, best fits their history and purpose, and best connects them with conceptually related rules of civil procedure. In order to eliminate the ambiguity of the term “issue”—and avoid future interpretive difficulties—Rules 50 and 52 should be amended to clarify their meaning
The Road Not Taken: A Critical Juncture in Racial Preferences for Naturalized Citizenship
Get PDFIn The “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel Jack Chin and Paul Finkelman argue that racist results in naturalization have arisen despite, or maybe because of, the race neutral interpretation. This happened in a manner that could have been predicted by the federal government’s attitudes toward non-White persons in the Naturalization Act of 1790 and the nearly unbroken chain of legal developments. This leads them to think of the law as a “super-statute.” While I agree that this is the path actually taken in history, I view the mid-1960s civil rights era as a “critical juncture” when the U.S. government could have taken a counterfactual path that was less racist. The counterfactual path would have required legal interpretations of Constitutional equality and statutory nondiscrimination that remained cognizant of racial implications of purportedly race neutral laws, which was briefly captured in language rights and voting rights statutes in the late 1960s to 1970s. But the egalitarian interpretations unraveled due to contradictions within the liberal national ideology that permitted a post-racial pragmatism about colorblindness that stalled the political incorporation of some non-White immigrants—Asian, Latino/a, Arab—due to their racialization as perpetual foreigners (racialized foreigners)
Coasting North: The Problem with the Jones Act for the Offshore Wind Industry and a Remedy from Canada
Get PDFThis Note is organized into three parts to examine how the Jones Act hampers the U.S. wind energy industry’s construction of offshore wind farms by requiring that only U.S. vessels transport materials from U.S. ports to the wind farms. The Note proposes a license modeled on Canada’s Coasting Trade Act (“CTA”) to allow non-U.S.-flagged vessels to participate in wind turbine construction. Part I will address the development of cabotage law in the United States, the creation of the Jones Act, and its impact on offshore wind. Part II surveys Canada’s cabotage laws, which culminated in the passage of the CTA in 1990. Examples are given of the successful implementation of the Canadian CTA license. Lastly, Part III argues implementing a licensing system similar to the CTA would be an effective solution to offshore wind woes and outlines how this license would function
