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Securities and Exchange Commission vs. Kim Kardashian, Cryptocurrencies and the Major Questions Doctrine
Get PDFThe SEC has brought some highly publicized enforcement actions against Kim Kardashian and other celebrity social media influencers who received undisclosed payments for their endorsement of cryptocurrencies. This Article describes those cases and analyzes whether the SEC exceeds its authority under the Constitutional “major questions doctrine” recently applied by the Supreme Court in West Virginia v. EPA. That doctrine prohibits a federal agency from regulating activities that raise a major question that Congress, rather than the agency, must resolve. Such a question is one in which there is major political and economic interest and over which the agency has no clear authority from Congress to act. As this Article relates, the cryptocurrency market is of major political and economic interest to millions of individuals and businesses. It is also the subject of intense policymaking efforts in the Executive Branch and Congress. This Article further analyzes whether Congress granted the SEC clear authority to regulate the cryptocurrency market. It finds no such authority. In its absence, the SEC relies on the 1946 Supreme Court decision in SEC v. Howey as the basis for its jurisdictional claims. This Article finds that decision, which involved the sale of Florida orange grove investments to tourists, to be vague at best and anything but clear on whether cryptocurrencies are “securities” that are subject to SEC regulation
Criminal Justice Reform and the Centrality of Intent
Get PDFThe nationwide movement for criminal justice reform has produced numerous proposals to amend procedural and sentencing practices in the American criminal justice system. These include plans to abolish mandatory minimum schemes in criminal sentencing; address discrimination in charging, convicting, and sentencing; reform drug policy; rectify discriminatory policies and practices in policing; assist incarcerated individuals in re-entering society when released from prison; and reorganize our system of juvenile justice. But less attention has been given to reforming the substantive content of the criminal law—specifically, to addressing flaws in how the law defines the elements of criminal culpability and deploys them in criminal cases. Yet important change is needed in this area. This Article addresses that need, proposing to abolish three substantive doctrines that share a common flaw: They all reduce or eliminate the prosecution’s burden of proving a defendant’s mental culpability— “intent”—in criminal homicide cases. The three doctrines arise in two overlapping areas of the criminal law: the law of homicide and the law of accomplice liability. All three doctrines make it significantly easier to secure convictions for serious crimes, including murder, without requiring the state to prove the defendant’s mental culpability with respect to the specific crime charged. The solution to this injustice—and the chief recommendation of this Article—is therefore identical in all three cases: Amid the current national and bipartisan movement to reform the criminal justice system, legislatures, and courts should abolish these doctrines
Friends With Benefits: Expanding Virginia\u27s Domestic Violence and Mutual Protection Order Statutes to Include Reciprocal Beneficiaries
Get PDFOn June 26, 2015, the Obergefell decision recognized same-sex marriage. While same-sex couples celebrated their new rights to marriage equality, they still face legal battles in the realm of domestic violence. Both married and unmarried same-sex couples face discrimination when reporting incidents of domestic violence. While most domestic violence statutes are gender-neutral on their face, their implementations disparately impact same-sex couples. Furthermore, domestic violence statutes that include same-sex couples punish same-sex couples more harshly than opposite-sex couples. This Note will examine the domestic violence law in Virginia, arguing that the laws are too vague to properly protect same-sex couples and that mutual restraining orders are an undue burden on same-sex couples seeking protection in domestic violence cases
Foreword to International Environmentalism: A Global Approach to Global Challenges
Get PDFAs the effects of climate change progress, people and governments in every country are left grappling with how to combat the consequences. Recognizing that such global challenges necessitate an international approach, this Symposium was convened to critically examine the domestic application of international law, the role of non-governmental organizations (“NGOs”), transnational ecological harms, and international environmental agreements. Articles and contributions from panelists in the Symposium contemplated the best paths forward in the face of an ever-changing international landscape.
This abstract has been taken from the author\u27s opening paragraphs
What Did I Miss? A Demonstration of the Differences Between ChatGPT-4 and 3.5 that Impact Legal Research and Writing
Get PDFMany news sources are raving about how much more advanced ChatGPT-4 is than 3.5. You may have heard that ChatGPT-4 outscored 90% of test takers on the Uniform Bar Exam, while ChatGPT 3.5 only outscored 10% of test takers. But what does this mean for teaching legal research and writing? In this presentation, we will compare specific examples of ChatGPT 3.5 (the free version many of us tried in the spring) and ChatGPT-4 (the paid version released in March)
Editing with ChatGPT: Taking Advantage of Tools that Allow us to Place the Focus Back on Legal Analysis in the Classroom
No full textIncreasingly, legal writing educators are serving as English Composition teachers to help law students elevate their writing to the level necessary for effective communication in academic and professional settings. However, teaching legal analysis is a complex skill that also requires significant time in the classroom and is really meant to be the focus of legal writing courses. Time spent on grammar and editing skills is time taken from mastering legal analysis.
Though there are many reasons to fear ChatGPT, there are also positive uses for it that if introduced and used strategically can allow us to refocus student learning. This presentation explores the potential application of ChatGPT in improving these skills for law students rather than using class time.
The proposed application of ChatGPT focuses on providing students with a valuable tool to assist them in honing their grammar and editing capabilities. The implementation of ChatGPT for grammar and editing skill enhancement involves three primary methods. ChatGPT can serve as an interactive grammar tutor, enabling students to seek clarification on grammar rules, syntax, and appropriate word usage. By engaging with the AI model, students can reinforce their understanding of complex grammar concepts and develop their skills through personalized, instantaneous feedback. The AI model can identify and correct grammatical errors, suggest improvements for sentence structure and word choice, and offer guidance on stylistic consistency, resulting in an overall enhancement of the student\u27s writing.
Finally, ChatGPT can be utilized as a collaborative writing partner, supporting students in the drafting and refining of their assignments. This interactive approach encourages students to think critically about their writing and make informed decisions on the appropriate revisions to improve their work. The combination of these methods facilitates an engaging, student-centered learning experience, empowering law students to take ownership of their grammar and editing skills development
Health of Nations: Preventing a Post-Pandemic Emerging Markets Debt Crisis
Get PDFSixty percent of low-income countries are currently at “high-risk” of insolvency, necessitating debt relief, according to the International Monetary Fund. The enormity of the problem cannot be overstated; a prospective sovereign debt crisis and economic collapse threatens hundreds of millions of people around the world.
At the same time, the tools to address these challenges are wholly inadequate. Typically, debt reduction is effectuated through statutory systems; sovereign debt is a critical exception, as there is no bankruptcy court for countries. Historically, this void was filled through a complex architecture based on custom, ‘soft law,’ and contractual mechanisms. However, that construct has grown increasingly ill-suited for contemporary challenges. A new system for sovereign debt renegotiation—the Common Framework—was established in late 2020 to much fanfare. It has universally underwhelmed.
This Article provides an early assessment of the Common Framework, finding that it has failed because it: (i) lacks institutional infrastructure; (ii) exacerbates conflicts amongst creditors; and (iii) delivers insufficient benefits for debtors while unduly restricting nations’ eligibility—including, perhaps most pertinently, Ukraine and Sri Lanka.
Yet, because it remains the “only game in town” for addressing the coming sovereign debt crisis, the Common Framework must be amended, rather than discarded—and, to that end, this Article prescriptively recommends a number of steps. Most significantly, to support Common Framework implementation, the Article proposes establishing a ‘Coordinating Forum’—a mechanism distinct from a court of law, intended to fill critical gaps in informational and coordinating infrastructure. In addition, the Common Framework should provide greater benefits for debtors, while being available to more nations.
Finally, the Common Framework must require private investors to share the burden, which this Article posits can be accomplished by leveraging innovative ESG and climate-linked instruments, with Belize’s recent ‘debt-for-nature’ restructuring transaction—which tied debt reduction to environmental conservation— providing an attractive template.
It is imperative that policymakers develop sufficient tools to address the coming sovereign debt storm. The economic and public health implications cannot be overstated; no nation should be forced to choose between vaccines and interest payments
Justice Alito\u27s Laundry List: Highlights from Appendix C of Bostock and a Roadmap for LGBTQ+ Legal Advocates
Get PDFAfter a brief background on Bostock [v. Clayton County] in Part I, the bulk of this Note seeks to examine Justice Alito’s Bostock dissent and its potential future usefulness for LGBTQ+ advocates. Part II will analyze Justice Alito’s dissent and Appendix C, arguing that his concerns about Bostock’s consequences across other federal statutes fall into three primary categories of usefulness. The remaining Parts will survey these categories, including the “small potatoes” in Part III, the “blockbusters” in Part IV, and the “under-the-radar” areas in Part V. Part V takes particular notice of potential applications of Bostock’s pro-LGBTQ+ approach to federal statutes that may fall outside of policy areas that typically engender advocates’ attention. It is this author’s hope that such a categorization can help scholars and advocates accurately gauge the impact of Bostock and the veracity of Justice Alito’s complaints. More importantly, however, this categorization will allow advocates to prioritize policy areas that have been largely overlooked as important potential battlegrounds to further expand LGBTQ+ legal protections post-Bostock.
This abstract has been taken from the author\u27s introduction
Plea Bargaining\u27s Uncertainty Problem
Get PDFWhile commentators roundly condemn plea bargaining, the criticism can be as muddled as the practice itself. Critics’ primary target is the “trial penalty.” But a differential between guilty-plea and trial sentences seems inevitable in any system that allows defendants to concede guilt. And, as a new wave of “progressive prosecutors” is demonstrating, gaps between (unusually lenient) plea offers and long (potential) post-trial sentences are not only a strong incentive to plead guilty but also a powerful tool for reducing American penal severity. Other critiques point to flaws that parallel those found in the broader system, overlooking that plea bargaining is typically a reflection of these flaws, not their source.
Finding the traditional critiques lacking, this Article highlights uncertainty as the core problem with plea bargaining. It is easy to overlook uncertainty because analysis of plea bargains usually focuses on cases after they have been resolved. Yet from the perspective of someone accused of a crime who is deciding whether to plead guilty, uncertainty is key. And while some uncertainty is inevitable, in many scenarios, plea bargaining turns the defendant’s choice into something resembling a bet at a Las Vegas casino— a solemn spectacle of plea-bargaining roulette.
Identifying uncertainty as plea bargaining’s distinct contribution to American dysfunction is important for two reasons. First, it provides a realistic blueprint for improving the largely unregulated plea-bargaining process—this country’s dominant mechanism for resolving criminal cases. Second, by suggesting that plea bargaining is not the primary source of other important problems, like excess severity or wrongful convictions, the analysis helps to redirect reform efforts targeting those important problems to areas where they may be more effective
Environmental Assessment in a Time of Rapid Change and High Uncertainty: The Addition of Resilience Assessment to NEPA
Get PDFThis Article turns to ecological resilience theory to understand the behavior of SES [socioecological system] undergoing change. Informed by the emergent and surprising behavior of these complex systems, this Article argues for the option of resilience assessment under NEPA [National Environmental Policy Act] for use in application to climate adaptation measures in the United States. The amendment also provides an alternative approach to pre-project judicial review to ensure legitimacy within a more flexible process.
To this end, Part I addresses why an alternative approach to environmental assessment is needed in the context of climate adaptation by providing an overview of the dynamics of complex SES understood through the lens of resilience theory. Part II addresses what type of assessment is needed in situations of high uncertainty and ongoing change by introducing resilience assessment as a means to understand change in complex SES and to identify, measure, and ultimately enhance the adaptive capacity of rising and future generations. Part III addresses how resilience assessment can be used in agency programs and decisionmaking under NEPA, including model amendments. Climate mitigation is essential, but many aspects are technology-related and lend themselves to traditional NEPA review, whether expedited or not. In contrast, climate adaptation requires management of complex SES facing change that includes sea level rise, changing wildfire regimes, greater extremes in flood and drought, changes in water supply and timing, and increasing temperature extremes. System response will be contextual, potentially nonlinear, with high levels of uncertainty. As a result, climate adaptation must focus on measures that build long-term adaptive capacity rather than short-term results. This Article addresses the why, what, and how this may be facilitated through NEPA.
This abstract has been taken from the authors\u27 introduction