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The D.C. Circuit Has Struck Again: Judicial Deference & the SEC\u27s Experimental Rule Making Authority
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Separate and Unequal: The Genesis of a Gender-Biased Campus Disciplinary System for Sexual Violence Survivors in California
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The Information Shortfalls of Prosecuting Irresponsible Executives
No full textThis Essay, written for the 2020 Clifford Symposium on Tort Law and Social Policy, focuses on the prosecution and conviction of three corporate executives under the responsible corporate officer (RCO) doctrine in connection with Purdue Pharma’s misbranding of OxyContin. The RCO doctrine relieves prosecutors of having to demonstrate a difficult-to-prove mental state such as purpose or knowledge and instead holds corporate officers criminally responsible for certain violations that take place on their watch. Although Purdue Pharma’s three executives suffered economic consequences from their 2007 convictions, they received no term of imprisonment. This result elicited a fair amount of criticism, which intensified after an internal report surfaced indicating career prosecutors would have preferred more serious charges.Critics deride plea bargaining because it places unfair pressures on defendants and deprives them of relevant information. Less attention has been paid to the formal charging instrument, the criminal Information (itself the product of a plea bargain), which deprives the general public of crucial information, even as is filed in court and freely accessible to the public. This Essay aims to remedy this gap by focusing attention on criminal charging documents that deliberately paint a sanitized and incomplete portrait of wrongdoing. This information-dampening dynamic poses greatest risks for the so-called “public welfare offense,” a category of crimes that arise in highly regulated settings and are often used to prosecute mid and high-level corporate executives.Relying on strict theories of liability, the public welfare offense purports to deter and incapacitate actors whose actions or omissions threaten the public’s safety. In precisely these cases, information-generation ought to be the government’s strongest priority. The public cannot protect itself from diffuse harms if it misunderstands their severity or scope; nor can it adequately oversee the public officials tasked with redressing these harms. Regrettably, however, the very feature that enables the government to convict high-level executives of public welfare offenses—the RCO doctrine—simultaneously generates opaque charging documents that fail to say what exactly the offenders did, said, or knew. That is the paradox of executive criminal liability: doctrines and laws designed to ease the government’s burden also weaken its information-producing function. As a result, the public learns too little, and too late, about practices that threaten its long-term health and welfare. After examining this dynamic and its relationship to the Purdue Pharma prosecutions, this Essay surveys several reforms and their corresponding tradeoffs
Art Law 201: Painting the Picture of Sales of Art During a Global Pandemic
No full textThe 2020 pandemic has occasioned unprecedented challenges to the art market. As an industry once dependent on in-person interactions, COVID has changed the landscape, requiring art galleries to shut their doors, art fairs to be cancelled, and auction houses to move to online bidding. In the first half of 2020, the art industry experienced the permanent closure of many galleries, mergers, and take overs by larger entities. As a consequence of the restrictions on travel, many more people are also spending most of their time in at home. Some collectors used COVID and its resulting restrictions to update their collections and to improve the walls of their home. While others were forced to sell their once-prized possessions. Ultimately, the art market has tried to adapt to this new unchartered territory
Central Bank Digital Currency for the Crypto-economy: An Experi-mental Proposal Based on the European Single Market and Institution-building
Get PDFMuch Cry and Little Wool?: Determining the Exact Role of the Inter-national Criminal Court in Transitional Justice Efforts
Get PDFBeyond Emissions: Migration, Prisons, and the Green New Deal
Get PDFThe Green New Deal is a bold resolution that asks us to envision climate policy beyond emissions reductions and pollution controls. The proposal seeks to reduce environmental impacts, including by dramatically reducing carbon emissions, while supporting domestic manufacturing, unionized labor, sustainable agriculture, and social equity. The Biden Administration has expressed support for the Green New Deal as “a crucial framework for meeting the climate challenges we face,” and the proposal has influenced the Administration’s early actions to reduce carbon emissions. How can the Green New Deal’s framework guide climate policy beyond emissions reductions, and who should be a part of this conversation?
Using examples from immigration law and policy, this Article envisions what climate policy beyond emissions looks like in two key areas: climate migration and immigration detention. Rightfully so, the Green New Deal makes several gestures toward the impact its proposals would have on immigration policy and migrant communities. The Green New Deal identifies that climate change will cause—indeed, already has caused—mass migration, labels climate change as a national security threat, and recognizes that climate change will disproportionately impact migrant communities. And it expressly sets out to stop and prevent further oppression of migrant communities. As a framework, the Green New Deal demands attention to the intersection of climate and immigration policy and meaningful commitment to reforms in the areas of immigration law that the Green New Deal impacts.
We argue that failure to consider the role of immigration reform in climate policy risks undermining the Green New Deal’s goal of aligning environmental and economic policy with racial, social, and economic equality, as well as its specific goals focused on migrant communities. To address the impact of climate change on mass migration and vulnerable communities, immigration reform should be understood as a key element of climate policy guided by the Green New Deal. We start that conversation by offering proposals that integrate key immigration reforms into a climate policy that looks beyond borders and beyond prisons