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Canceling Difficult Cancellation: An Analysis of Recent Regulatory Efforts to Make Canceling Subscriptions Easier
Get PDFThe subscription-based economy is on the rise, and so are complaints of difficult cancellations. Companies utilize coercive and exploitative techniques, known as “dark patterns,” to trap consumers in subscription-based services. One notorious “dark pattern” is the “click-to-subscribe, call-to-cancel” scheme, whereby individuals can sign up online. But, when it comes time to cancel, many consumers often find themselves waiting on hold for hours.
In the interest of consumer welfare, subscription-based services should be as easy to cancel as they are to sign up for. Accordingly, this Note discusses the merits of recent crackdowns on cancellation barriers, including the Federal Trade Commission’s October 2021 policy enforcement statement. Ultimately, this Note advocates for increased federal and state regulation to protect consumers from harmful cancellation barriers
Historians Wear Robes Now? Applying the History and Tradition Standard: A Practical Guide for Lower Courts
Get PDFNever before has the Supreme Court relied on the history and tradition standard to such a magnitude as in the 2021 term to determine the scope of a range of constitutional rights. [...] In reaffirming this standard, the Supreme Court provided no guidance to lower courts on how to apply and analyze the history and tradition standard. Along with balancing the lack of resources in deciding cases with the history and tradition framework, lower courts must face the reality that this standard presents ample opportunity for one-sided historical analysis. To combat the temptation of conducting unbalanced and cursory reviews of historical sources and to ensure consistent interpretation and application of the law, lower courts must administer a workable, practical, and predictable method to apply the history and tradition standard. Acting within the vague boundary lines set out by the Court in Bruen, Dobbs, and Kennedy, lower courts must evaluate the history and tradition surrounding a given right through finding historical evidence that the right, or foundations of the right, survived to become the law of the Founders or adopters. But lower courts must recognize the pitfalls of the history and tradition test. Lower courts should avoid over-relying on amicus briefs, listening to “law office history,” or scrutinizing historical outliers in drawing conclusions.
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Part I of this Note provides background on the origins of this test, the rise of originalism, and the evolution of the use of history and tradition. Part II discusses how lower federal courts have used history and tradition to inform its decisions thus far. Part III breaks down the modern doctrine at the Supreme Court, most significantly the use of the history and tradition test in the 2021 term. Part IV describes how lower courts have struggled to apply the history and tradition test. Part V establishes a practical way for lower courts to apply the history and tradition test, balancing the interests of justice with the realities of the limits of the lower courts. The workable standard suggests that lower courts, in tandem with the use of expert witnesses or special masters, must engage in “historical quarrying.”
This abstract has been adapted from the author\u27s introduction
Russia\u27s Roulette: Sanctions, Strange Contracts & Sovereign Default
Get PDFThis Article is the first comprehensive, multi-disciplinary analysis of Russia’s sovereign debt and the consequences of a potential default.
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This Article introduces a Russian debt taxonomy divided into four distinctive categories. Starting with relatively standard terms in late-1990s vintage bonds, over time and as a close function of geo-political developments, the contracts grew unusual—bordering towards lawless.
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The rest of this Article is organized in four parts. Part II provides critical background regarding Russia’s sovereign debt and details key legal provisions likely implicated in the event of a default. Part III discusses how, due to the complex interplay between global sanctions and Russia’s sovereign debt, policy measures have pushed Russia towards default. Part IV analyzes the unprecedented legal challenges implicated by Russian default, including determining its obligations, contractual remedies, and challenges in resolution. Part V focuses on broader implications, including with respect to future sanctions regimes and potential legal conflict between bond investors and Ukraine over Russian assets, which this Article posits imperatively necessitates legislative action to prevent a morally unacceptable outcome.
This abstract has been taken from the author\u27s introduction
Political Default. The Implications of Weaponizing Global Financial Infrastructure
Get PDFIn response to Russia’s unlawful invasion of Ukraine, the U.S. has led a broad-based global coalition to punish the aggressor with an “unprecedented” sanction regime. Those measures have targeted “the Russian government’s basic tools to manage its macroeconomy,” with a particular emphasis on its sovereign debt. That concerted focus, as this Article empirically demonstrates through analysis of bond and credit default swap data, ultimately resulted in Russia’s first foreign currency debt default in over a century — despite the nation’s ability and seeming willingness to pay.
Notwithstanding aptly-deserved “just deserts” considerations, a forced — or “political” — Russian sovereign debt default through the operation of sanctions raises unique policy and normative questions, while creating underappreciated risks for emerging markets at an extremely fragile time.
This Article, part of a broader series regarding the Ukraine conflict, is the first to explore these critical developments, detailing the associated potential risks and externalities, as well as mitigating factors
Why (and How) the Constitution Should Protect Prisoners from Gratuitous Disclosure of Their HIV/AIDS Status
Get PDFThis Note is not the first to advocate for prisoners’ constitutional privacy rights concerning their HIV/AIDS status, but it is the first to focus on isolated incidents of disclosure rather than general policies that tend to lead to disclosure like mandatory testing or segregation based on HIV/AIDS status. This Note argues that the Fourteenth Amendment’s Due Process Clause should protect prisoners from isolated disclosures, meaning prisoners should have a § 1983 cause of action against guards or other prison officials who disclose their HIV/AIDS status in a gratuitous manner.
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The proceeding section of this Note, Part I, details the existing legal framework for constitutional privacy rights, from the seminal case Whalen v. Roe to the current circuit split. Part II explores the Payne decision in depth to explain why other circuits should not follow the Fourth Circuit’s holding concerning the privacy rights of incarcerated people. Part III explains why the Fourteenth Amendment is the proper source of privacy protection compared to the Eighth Amendment and state law remedies. Finally, Part IV addresses important questions pertaining to § 1983 litigation for gratuitous disclosure.
This abstract has been taken from the author\u27s introduction
Revisiting Rights-Talk in Magna Carta: Applying Hohfeld to the Problem
Get PDFThis Article attempts to resurrect rights-talk in Magna Carta and, in doing so, to revisit rights discourses in the histories of rights more generally. It does so by means of a rights discourse that is axiomatic and therefore arguably free from the contentious underpinnings that potentially beset many historical accounts of rights. This is the formalistic account of rights offered by influential legal theorist Wesley Hohfeld. Against charges that it is anachronistic to apply a modern formalist legal theory such as Hohfeld’s to pre-modern sources, it is contended that this same accusation could be levelled at any other attempt to trace a modern concept into premodern sources, as I demonstrate in this Article. This Article nevertheless will carefully attend to contextualising the sources and explaining the methodology. In applying Hohfeld’s so-called “fundamental legal conceptions” to the provisions of Magna Carta, this Article is consistent with recent works by Thomas Duve advocating an approach to legal history that incorporates “praxis.”
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Part I outlines a proposed solution to this problem, namely the analysis of rights put forward by legal theorist Wesley Hohfeld, contrasting this to historian Brian Tierney’s well-known studies on the lineages of rights analysing objective and subjective understandings of the term ius and a later iteration examining permissive natural rights. It also turns to the notion of praxis hinted at by Tierney but given greater emphasis in recent scholarship by Thomas Duve. Part II provides the background to the problem of rights in Magna Carta by outlining its provisions and then tracing scholarship on it: the traditional approaches before Holt, which found a place for discussions of rights; the monumental work of Holt, which shifted the focus away from rights; and the diversity in readings that followed Holt, further moving away from rights. Part III then turns to Hohfeld in praxis by applying his conceptions of legal entitlements to the provisions of Magna Carta. It also, by way of contrast and illustration of the usefulness of Hohfeld in this context, applies Tierney’s rights analyses to those chapters. Part IV completes this revisiting of rights-talk in Magna Carta by comparing and contrasting the approaches of Holt, Tierney, and others with Hohfeld in their conception of the traditional binary that separates conceptions of rights as modern (individual) or pre-modern (communal). The Article concludes with some observations on how the term “rights” can still be meaningfully applied to historical examinations of Magna Carta and rights more generally albeit with some important qualifications.
This abstract has been taken from the author\u27s introduction
Monopolizing Digital Commerce
Get PDFSection 2 of the Sherman Act condemns firms who “monopolize,” “attempt to monopolize,” or “combine or conspire” to monopolize—all without explanation. Section 2 is the antitrust law’s only provision that reaches entirely unilateral conduct, although it has often been used to reach collaborative conduct as well. In general, § 2 requires greater amounts of individually held market power than do the other antitrust statutes, but it is less categorical about conduct. With one exception, however, the statute reads so broadly that criticisms of the nature that it is outdated cannot be based on faithful readings of the text.
The one exception is competitive injuries that occur in secondary or complementary markets where they do not realistically threaten monopoly. While this problem is ubiquitous in the law of monopolization, it is particularly prominent in networks. Competition on multi-firm networks requires collaboration. As markets have become more networked a significant emergent problem is actions by dominant firms that cause competitive harm in secondary markets. For these, the United States would do better to incorporate an “abuse of dominance” standard. This approach would be far superior to many recently proposed bills that address the issue of “self-preferencing,” or dominant firm favoritism toward their own products. These bills are too narrow in that they single out a small set of firms for adverse treatment, usually without regard to market power. They are also too broad, however, to the extent that they identify a great deal of harmless and socially beneficial conduct as abusive.
This Article additionally explores several related areas in which antitrust policy toward monopolization should take a different approach, particularly in networked markets. These include (1) Vertical Integration, Refusal to Deal, and Self-Preferencing; (2) Mergers as Exclusionary Practices; (3) Anticompetitive Product Design and Restraints on Innovation; (4) Strategic, Exclusionary Pricing; and (5) Anticompetitive Intellectual Property Practices
Disability and Transnational Arbitration: Human Rights Linkages and Reasonable Accommodations
Get PDFDisability intersects with arbitration as regards the mental capacity of a party to enter into an arbitration agreement, the appointment of arbitrators with disability and grounds for removal thereof, accommodations during arbitral proceedings for arbitrators and counsel with disabilities, as well as the costs for all appropriate accommodations. This Article demonstrates that the right to a fair trial, which is universally recognized in arbitration, dictates that parties and arbitral institutions be free to select arbitrators of their choice, and no impediments may be imposed against arbitrators with disabilities other than that they are able to fulfill the functions of their mandate. Accommodations, however, are not enough. Arbitral institutions, the legal profession, and professional associations, in conjunction with the government, must undertake a sustained campaign to eliminate bias and stereotypes of disability and actively promote arbitrators and counsel with disabilities in arbitral proceedings. Finally, this Article shows that the cost to accommodate arbitrators and counsel with disabilities is less significant than multilingual arbitrations and, in any event, may be offset through synergies between arbitral institutions and governmental entities
The Future of China\u27s U.S.-Listed Firms: Legal and Political Perspectives on Possible Decoupling
Get PDFThere is a long history of Chinese firms raising capital on leading U.S. exchanges. These shares have proved attractive and are estimated at $1 trillion value, in spite of deep mismatches between Chinese internal approaches to corporate governance and those taken under U.S. securities regulations. Chinese listings of nonstate firms, particularly in the technology sector, had depended on a largely laissez-faire initial approach to the expansion through foreign listings, including tolerance of the opaque Variable Interest Entity (VIE) structures adopted as a means to bypass Chinese restrictions on foreign ownership. Concerns regarding data security had, however, prevented compliance by Chinese firms listed in the United States with audit inspection requirements, and these mismatches in the United States have now led to Chinese firms being on shaky ground on both sides of the U.S.-China fault-line. U.S.-listed Chinese companies have faced the looming threat of delisting under the Holding Foreign Companies Accountable Act (HFCAA), enacted in response to both non-compliance with audit inspection requirements and concerns about the opaque nature of VIEs and possibilities of Chinese state control. Admittedly, fears of mass delistings under the HFCAA in the near future have been allayed by Chinese agreement as to U.S. audit inspections, and the 2022 finding of two Chinese firms to be compliant with U.S. regulations. There remains, however, heightened levels of Chinese state involvement in the affairs of nonstate companies with further potential to bring strain, as Communist Party policies have changed dramatically in recent years, alongside heightened geopolitical tensions. The data concerns that had prevented audit inspections have not disappeared and, in fact, have grown. These, together with some other harmful Chinese state strategies impressed upon nonstate firms and preferences for Chinese firms to look inwards for capital, as well as a damaging trade war in semiconductors, present remaining concerns regarding investments in U.S.-listed Chinese firms. Immediate concerns regarding delistings under the HFCAA may have abated but there may be other firms for which compliance may be difficult, and there remains potential for future delistings, presenting risks for U.S. investors. These Chinese firms may find the exit voluntarily whilst the stream of U.S. listings by Chinese companies will slow. It will not yet amount to a decoupling, but investors should be wary