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Less is More?: Accountability for White-Collar Offenses Through an Abolitionist Framework
Get PDFWhite-collar crime is underenforced: not enough cases are brought, not many convictions are secured, and when they are, those who were convicted usually benefit from leniency not seen in other kinds of criminal wrongdoing. Calls for accountability center on strengthening the traditional tools of criminal law enforcement to reach actors that have so far eluded criminal liability. These responses, however, risk further entrenching the systems that have led the United States to mass incarceration and its many real and tangible harms. In this Article, I question whether an abolitionist framework is possible for white-collar crime. First, I argue that given the type of perpetrator and conduct involved in white-collar offenses, it seems as though white-collar offenses cannot be addressed under an abolitionist framework. I then show, however, that traditional justifications for incarceration are no more valid in the white-collar context than in other ones. Finally, I suggest how non-carceral responses may better ensure accountability for white-collar wrongdoing. My goal is not to suggest that we should embrace these responses immediately but that they are possible and worth building
Introductory Note to Cassirer v. Thyssen-Bornemisza Collection Foundation (U.S. Sup. Ct.)
No full textDuring the winters of 1897 and 1898, from the window of his Parisian hotel, Camille Pisarro painted one of his first urban scenes, Rue Saint-Honoré in the Afternoon. Effect of Rain (the Painting). The Painting marks a significant deviation from Pissarro\u27s prior works, which primarily consisted of au plein air country landscapes. In addition to the Painting\u27s art historical significance, it has now become one of Pissarro\u27s most infamous paintings. Currently sitting in the Museo Nacional Thyssen-Bornemisza (TBC) in Madrid, this artwork has been the subject of a decades-long court battle over its ownership. After the Nazis assumed control of Germany, the original owner forcibly surrendered the Painting in order to obtain exit visas for her family. Decades later, the heirs of the original owners attempted to recover the Painting under the Foreign Sovereign Immunities Act (FSIA). After this decades-long litigation, the case went to the U.S. Supreme Court to resolve a procedural issue: what choice-of-law rule a court should apply in an FSIA case raising state claims
Regulatory Choices and Legal Disputes in the Fight Against COVID-19 Infections in the Workplace
No full textThis is a comparative study of two countries’ legal and policy actions to stem the spread of COVID-19 in the workplace, focusing on Italy and the United States (US). Both nations sustained great loss of life and high infection rates during the first years of the pandemic. This chapter examines how Italy and the US approached COVID-19 vaccine mandates for workers. Of particular interest are the regulatory choices made, including the choice not to regulate, and the consequences of those choices on the employment relationship. Additionally revealing are the legal grounds upon which regulatory actions were challenged, and how courts balanced the interests at stake. Finally, the way in which the debates over workplace vaccine mandates were framed illuminate national culture and the extent to which each country views labor rights as human rights. To provide context for these insights, this chapter examines convergence and divergence in the two countries’ initial responses to the global health emergency presented by COVID-19, and the way in which workplace vaccine mandates were initially embraced
International regulation of genetically engineered food
No full textFood security and climate change are interrelated problems. The global population is growing; we need to feed more people and lessen our impact on the climate. One partial solution to this issue is using the science of genetically engineered crops to grow more nutritious food sustainably. Public sentiment against genetically engineered food, colloquially known as GMOs, demonstrates a misperception of risk. The science of genetically engineered food in the marketplace establishes its safety. Another major hurdle for utilizing science to address food security and climate change is a patchwork of international regulations governing genetically engineered food, decreasing widespread application and acceptance. This chapter reflects on the interaction of science and regulation relating to genetically engineered food and discusses the consequences of the regulation of genetically engineered food on malnutrition and climate change. Supporting science is critical to combat other enormous issues we face as a human race worldwide
The Case against Regional Transmission Monopolies
Get PDFOver the next decade, the United States will need to build significant regional transmission infrastructure to achieve the country’s goal of net-zero power by 2035. However, there is a significant barrier: the transmission system is almost entirely owned by private monopolies. As a result, the grid has grown not to serve the public interest but in accordance with the economic priorities of these monopolies, which are not incentivized to innovate, find efficiencies, or lower costs. Past attempts to encourage competitive bidding for regional transmission projects have been stymied by laws intended to protect the monopolies, including the right of first refusal (ROFR) to build regional transmission lines. After years of legal battles over the Federal Energy Regulatory Commission’s (FERC) removal of the federal ROFR, a circuit split has emerged over whether state ROFRs violate the Dormant Commerce Clause. This Article argues that the circuit split obscures the stronger legal analysis, which is that FERC’s withdrawal of the federal ROFR was within its exclusive jurisdiction under the Federal Power Act and thus renders state ROFRs per se invalid. Additionally, FERC must maintain the withdrawal of the federal ROFR despite monopoly pressure, as doing so would result in the blanket removal of both federal and state ROFRs. Lifting the gatekeeping effects of the ROFRs would finally allow more robust competition for regional transmission projects and facilitate building the decarbonized grid we need
When “Riot” is in the Eye of the Beholder: The Critical Need for Constitutional Clarity in Riot Laws
Get PDFIn the twenty-first century, American streets are frequently filled with passionate protest and political dissent. Protesters of diverse backgrounds range from those waving flags or lying on the ground to re-enact police killings to those carrying lit torches or hand-made weapons. This Article addresses how, as between such groups, it may initially seem clear which has a propensity to engage in violent riots, but too often, “rioter” is in the eye of the beholder, with those both regulating and reporting on riots defining the term inconsistently. And ironically, while police brutality is often the subject of protests, non-violent protesters who take their outrage to the streets are frequently met with police decked out in militarized riot gear who engage in disproportionate heavy-handedness culminating in mass arrests, including of the non-violent protesters. The irony is compounded when the police turn a blind eye to comparatively violent counter-protesters, some of whom were the actual instigators of the violence for which comparatively non-violent protesters were later blamed and labeled “rioters.”
This Article documents conflicting descriptions of the same protests either as riots or not, both by media sources and even by court opinions. The Article explains how the problem of inconsistent interpretations of “riot” is rooted in and aggravated by the unclear and overbroad language of a substantial number of riot laws. Whether due to sloppy drafting or less benign reasons (as may be the case with riot laws granting immunity to those who drive vehicles into crowds of protesters), such flawed legislation endangers the liberty and potentially even lives of protesters. A misplaced comma can thus potentially become a matter of constitutional crisis, as poorly drafted legislation risks violating due process prohibitions on vague laws that foster discriminatory or arbitrary enforcement, First Amendment prohibitions on overbroad laws that chill and punish constitutionally protected expression.
To address the problem of inconsistent and unclear riot laws, this Article engages a comparative analysis of litigation in which riot statutes have been challenged as unconstitutional. Correspondingly, the Article also catalogs dozens of state statutes that remain on the books despite being dangerously vague or overbroad in a variety of respects. The Article proposes various specific revisions legislators should make to constitutionally flawed legislation, while also making substantive suggestions for those challenging the laws. Fundamentally, riot laws must provide sufficiently clear standards that unambiguously limit the potential prosecution of “rioters” to those with intent to commit imminent violence. Riot laws must carefully, clearly, and precisely define their key terms and delineate the intent requirements and requisite violent conduct to constitute rioting, rather than risk being struck down as unconstitutional.
While there is a strong governmental interest in protecting public safety, even that interest does not excuse laws that fail to clearly define what constitutes unlawful rioting, resulting in sweeping dragnets that ensnare non-violent and violent protesters alike. It is imperative that when history has its eyes on these unfolding chapters of political dissent and division, what it records is a respect for constitutional rights, not a continued pattern of those in power violating the rights of passionate, but non-violent, protesters
