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Trading Nonenforcement
Get PDFIn recent years, federal agencies have increasingly used nonenforcement as a bargaining chip—promising not to enforce a legal requirement in exchange for a regulated party’s promise to do something else that the law doesn’t require. This Article takes an in-depth look at how these nonenforcement trades work, why agencies and regulated parties make them, and the effects they have on social policy. The Article argues that these trades pose serious risks: Agencies often use trading to evade procedural and substantive limits on their power. The trades themselves present fairness problems, both because they tend to reward large, well-connected firms and because they often coerce regulated parties that lack bargaining power. Moreover, the agency’s nonenforcement promises aren’t binding—thus, even if a regulated party upholds its end of the bargain, the agency can always renege on the deal. The Article concludes by identifying several possible solutions that might discourage agencies from trading nonenforcement
New Update Available: How the DoorDash and TikTok Cases Will Change the Way Arbitration is Utilized in Class Actions
Get PDFIn the commercialized and technology-driven world we live in today, it is astonishingly easy to find an area where an arbitration clause has influenced our lives. If you have purchased a smart phone, applied for a credit card, downloaded an app, or ordered takeout, you have likely signed an arbitration clause. Arbitration claims can be a powerful tool for suppressing collective action and contributed to the steady decrease of class action filings for decades, particularly against large corporations. With the strengthening of arbitration clauses in the past several decades and the court’s tricky relationship with their enforcement, arbitration claims have been a developing source of contention in the realm of Alternative Dispute Resolution (ADR). The history behind arbitration and class actions as forms of dispute resolution is long and controversial, despite them being created for the sake of efficiency and fairness in the judicial system. With the long list of requirements plaintiffs must fulfill to be certified as a class and arbitration clauses often being heavily weighted in favor of corporate defendants, the path to satisfactory and just resolution is long, especially in mass tort and employment cases. However, plaintiffs have started using arbitration clauses to their advantage as a tool to circumvent class action waivers. Class action plaintiffs are turning the tables on defendants and more frequently utilizing ADR methods, such as arbitration, in their employment and mass tort claims
ASEAN Dispute Settlement and the Temple of Preah Vihear
Get PDFThe Association of Southeast Asian Nations (“ASEAN”) was established in 1967. The founding members of ASEAN are Indonesia, Malaysia, Philippines, Singapore and Thailand. Five other countries have since joined ASEAN, including Brunei, Laos, Vietnam, Cambodia and Myanmar. Today, ASEAN represents a strong economic organization which has Gross Domestic Product ranking top ten in the world. As to why the founding members decided to establish such an organization, Piris and Woon take the view that it was for the purpose of combating communism during the 1960s. In 2007, a milestone event for ASEAN was the adoption of the ASEAN Charter (“the Charter”). The Charter is ASEAN’s Constitution. According to the Charter, some of the purposes of this organization are “to maintain and enhance peace, security and … to promote ASEAN identity … to create a single market and production base …” There are a number of underlying principles including “respect for the independence, sovereignty, equality, territorial integrity and national identity of all ASEAN Member States …” The Charter also sets up a number of bureaucratic structures within ASEAN such as the ASEAN Summit, the ASEAN Coordinating Council, the ASEAN Community Councils
The Wealth of Our Commonwealth: Money, Capital, and Finance in a Productive Commercial Republic
Get PDFThere is a share of the investment capital available in any society that is generated by the public. In contemporary societies with well-developed payment systems and effective public governance, this share tends to grow large in comparison to that originated by non-public sources, the latter is intermediated and thus must be pre-accumulated, while the former is generated and is the source of what is accumulated. In spite of these truths, the US outsources management of its public capital stock to private sector financial institutions. This is a practice that a host of underappreciated collective action predicaments endemic to decentralized market exchange, most of them recursive and hence iteratively self-worsening without limit, ensures will result in misallocation and, therefore, poor modulation of credit aggregates as well. What is needed to draw public capital out of bubble-inflation and back into productive investment is to bring it back under public management, a project for which the present exposition provides a full architecture. This architecture is modeled as a stylized public balance sheet, taking the US Treasury and Federal Reserve System as a consolidated case study. Public liabilities take the form of Democratic Digital Dollars issued through interest-bearing digital Business and Citizen Wallets. Public assets take the form of public credit extended by the Treasury’s Federal Financing Bank (‘FFB’) and a newly ‘Spread Fed’ only for productive, not speculative, projects. A National Reconstruction & Development Council (‘NRDC’) and Price Stabilization Fund (‘The People’s Portfolio’) complete the picture, respectively affording democratic guidance as to what counts socially as ‘productive’ and collaring volatility among Systemically Important Prices and Indices (‘SIPIs’). Our public capital stock is a public resource in need of public management, which must be managed productively by and for the community
Contracts for Cohabitating Romantic Partners
No full textMarriage rates in the United States are at record lows; meanwhile, more couples are choosing to live together outside of marriage. Despite the changing landscape of romantic relationships, the law of nonmarriage has not kept pace. Rather than having a coherent, majority rule approach, the individual states have employed differing methods of providing for property distribution at the end of a long-term unmarried cohabitation. Unfortunately, absent the formal protections offered by marriage for both parties following a divorce, many cohabitants are at risk of suffering inequitable property distribution following the termination of a cohabitation. This Article proposes that states uniformly permit express and implied contracts between cohabitants to ensure that no party to the relationship is left without property after years of living and toiling together as partners
The Constitution\u27s Waning Enforceability: Constitutional Torts after Egbert & Vega
No full textThe 2021 term of the Supreme Court of the United States produced two opinions significantly dampening the future of constitutional tort actions, which are cases brought to remedy a government agent\u27s deprivation of an individual\u27s constitutional rights. First, in Egbert v. Boule, the Court refused to extend Bivens liability to an excessive force claim made against a United States Border Patrol Agent. Second, in Vega v. Tekoh, the Court contravened the traditional understanding of the Fifth Amendment\u27s Self-Incrimination Clause by preventing a§ 1983 civil rights action against a sheriffs deputy who procured an un-Mirandized statement from a criminal suspect. Read together, these decisions, along with the Court\u27s disregard for stare decisis in overturning Roe v. Wade and fifty years of precedent through Dobbs v. Jackson Women\u27s Health Organization, indicate the Court\u27s majority may soon further weaken constitutional torts.
This Article is one of the first to analyze the Court\u27s holdings in Egbert and Vega. To do so, this Article briefly surveys the history and development of constitutional torts in the United States, with a particular focus on the last sixty years of the Supreme Court\u27s jurisprudence. Subsequently, this Article methodically recounts the facts, arguments of counsel, and majority, concurring, and dissenting opinions in Egbert and Vega. Thereafter, using the background of constitutional torts, both through Bivens and § 1983, and the Court\u27s recent pronouncements, this Article argues that we are witnessing the last days of constitutional torts as we presently comprehend them. The Court\u27s open hostility to Bivens in Egbert and its evasive reasoning in Vega indicate the Court\u27s majority intends to significantly restrict or prohibit actions to enforce constitutional rights. Finally, this Article concludes by foreshadowing the significant consequences should the Court proceed along this path. Most notably, if individuals are not able to seek adequate redress for constitutional deprivations suffered at the hands of government agents, the Constitution\u27s safeguards are nullities
Promoting Women\u27s Advancement in the Judiciary in the midst of Backlash: A Comparative Analysis of Representation and Jurisprudence in Key Domestic and International Fora
No full textWomen\u27s advancement in the judiciary of the United States has been slow and uneven, and has long lagged behind other nations. Parity in representation remains distant, and the gains to date vulnerable to changes in administrations and fluctuating levels of state commitment to gender equality, with the recent global backlash to gender equality and international norms and institutions providing a critical example of this fragility. In this light, this Article argues that gender parity in the judiciary should not be viewed as merely a laudable goal. Rather, representation and parity should be viewed as fundamental state legal obligations under international law as well as critical mechanisms for achieving gender equality. This Article further situates the debates over gender equality and parity in the judiciary of the United States within the broader context of the global backlash to gender equality and global norms and institutions, shedding additional light on the ways that this backlash is playing out on American shores.
In doing so, it re-conceives the attacks on gender equality in the judiciary in the United States and globally as both a reaction to and indicator of the foundational significance and strength of the legal obligations to achieve gender parity in national and international judiciaries. It also explores the role and impact of women judges in strengthening global law and institutions, and the roles they can play achieving transformative change by analyzing the impact of the decisions and decisionmakers in a unique quasi-judicial forum involving the United Nations Commission on the Status of Women. Ultimately, in re-framing debates over representation and parity and grounding them in legal obligations, this Article aims to contribute to the literature and strategies for achieving meaningful representation in the judiciary and gender equality in the United States and globally
Crypto in Real Estate Finance
Get PDFBlockchain and cryptocurrencies have ushered in a digital gold rush. But all that glitters is not gold. The latest fad is the use of non-fungible tokens (NFTs) to purchase and finance real estate. Typically, crypto real estate transactions begin with the transfer of title for a residential property into a dedicated business entity, such as a limited liability company. Thereafter, an NFT is ‘minted’ and used to represent the ownership interest in that entity. The real property is then marketed online specifying that, to acquire it, one simply purchases the relevant NFT via a blockchain transfer. Crucially, buyers are expected to use the NFT as collateral to fund their purchase, rather than obtaining a traditional mortgage. Proponents of this novel structure insist that it yields cheap, fast, and secure real estate transfers, disrupting a sector infamous for its high costs, delays, and labyrinthine bureaucracy.This Article offers the first exhaustive examination of crypto real estate transactions. We reveal that the NFT financing model is not a mere technological upgrade, but rather transports parties out of the domain of traditional mortgages and into secured transactions law, with significant legal and policy implications. Most worryingly, it exposes borrowers to swift and irreversible home liquidations in case of default, robbing them of the protections historically afforded to homeowners. As foreclosures already impact minorities disproportionately, crypto real estate transactions risk hurting society’s most vulnerable. Our proposed normative framework seeks to address these flaws. We contend that the law should look past technological mechanisms and focus on substance. These dealings are still real property purchases financed with a loan, so courts should offer those in default the same safeguards available under traditional mortgages. Robust public policies on ownership must be upheld, and fair protections for the family home cannot be sacrificed at the altar of innovation
Heller, McDonald, Bruen, and the Unconstitutional Tax Burden of the NFA
Get PDFDuring the gangland-era crime sprees of the 1920s and 1930s, Congress enacted the National Firearms Act in an attempt to make it more difficult to acquire the types of weapons favored by gangsters by imposing an extreme tax on these weapons. The draconian rules governing the purchase of these firearms are still in place today, but, with the Supreme Court’s recent ruling in N.Y. State Rifle & Pistol Ass’n v. Bruen, the National Firearms Act may soon fall to challenges presented by Second Amendment activists. In Bruen, the Court ruled that, when the plain text of the Second Amendment protects a citizen’s conduct, if the government wants to burden that conduct, it must first show historical precedent for the gun control measure in both purpose and method. This article argues that the NFA will likely not survive a challenge if it is put to the test under the Bruen standard of review. However, minor changes to its enforcement may be enough to rehabilitate the National Firearms Act should it be found to be unconstitutional
Fault Lines & Fractured Foundations: A Paradigm Shift for Equal Pay for Professional Women Athletes
Get PDFIn the face of adversity, professional female athletes have championed the fight for equal pay and brought the issue to the national stage. Testifying in front of the Congressional House Oversight Committee, Megan Rapinoe, a professional soccer player for the United States Women’s National Team, articulates that “one cannot simply outperform inequality or be excellent enough to escape discrimination of any kind.” Megan Rapinoe’s message has touched the hearts of not only Americans but also people all over the world, and her leadership has brought visibility to the realities of gender-based discrimination of female athletes in the United States