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Developments in the Laws Affecting Electronic Payments and Financial Services
Get PDFThe past year proved to be a busy period for the regulation of electronic payments and financial services. In this year’s survey, we discuss rulemakings, enforcement actions, and other litigation that has significantly impacted the law governing payments and financial services. Part II addresses the ongoing fight between federal and state authorities over which should properly regulate Fin- Tech entities and describes some new steps the Office of the Comptroller of the Currency (“OCC”) has taken to assert its authority in this area. Part III details an enforcement action that California regulators took against a FinTech company they determined had misrepresented its relationship with its banking partner. Efforts by both federal and state regulators to assert their authority over virtual currency, including a relatively new form of virtual currency called a stablecoin, are discussed in Part IV. The decision of a federal judge upholding the application of the District of Columbia’s money transmission statute to a virtual currency business is addressed in Part V. Part VI covers much-needed guidance from the Consumer Financial Protection Bureau regarding Earned Wage Access products while Part VII discusses the Bureau’s loss of a court challenge to part of its regulations governing prepaid accounts. In Part VIII, we address a warning from the Federal Trade Commission (“FTC”) to businesses employing artificial intelligence that the use of algorithms that discriminate based on race or other protected classes is a violation of federal law. Section IX provides our thoughts on what business lawyers may expect to see in the next year or two
Ethnically Segmented Markets: Korean-Owned Black Hair Stores
Get PDFRaces often collide in segmented markets where buyers belong to one ethnic group while sellers belong to another. This Article examines one such market: the retail of wigs and hair extensions for African Americans, a multi-billion-dollar market controlled by Korean Americans. Although prior scholarship attributed the success of Korean American ventures to rotating communal credit, this Article argues that their dominance in ethnic beauty supplies stems from collusion and exclusion.
This Article is the first to synthesize the disparate treatment of ethnically segmented markets in law, sociology, and economics into a comprehensive framework. Its primary contribution is to forge the concept of ethnically segmented and misaligned (ESM) markets, where buyers and sellers are ethnically distinct from one another.
ESM markets challenge entrenched paradigms in antitrust. In the wigs and extensions market, the endurance of Korean American retailers confounds conventional notions of market power, which is measured at the firm level. This market suggests that numerous in-group incumbents can compete intensely with one another but collaborate to stymie out-group insurgents
Departing dean showed ‘true leadership’: Parrish leaves strong legacy as he prepares to depart IU Maurer
Get PDFMinisterial Employees and Discrimination Without Remedy
Get PDFThe Supreme Court first addressed the ministerial exemption in a 2012 case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. The ministerial exemption is a defense that religious employers can invoke in discrimination cases brought by employees who qualify as “ministerial,” and it is rooted in the First Amendment principle that government cannot interfere in a church’s choice of minister. However, Hosanna-Tabor did not set out a test to determine which employees are covered by this exemption, and the decision was susceptible to a reading that the category was narrow. In 2020, the Court again took up the ministerial exemption, this time staking out a broad test that will cover swaths of teachers at religious schools, among others.
This Article explores the costs to employees of the ministerial exemption— especially those who have no idea that they will not have legal recourse if their employer discriminates against them based on a protected characteristic. It closes by raising the possibility that state legislatures could adopt measures intended to blunt these costs, either by helping to close the information gap, or by addressing head-on the costs of discrimination without remedy
Facts Versus Discretion: The Debate Over Immigration Adjudication
Get PDFJustice Amy Coney Barrett recently issued her first majority-led immigration opinion in Patel v. Garland (2022). As background, some immigrants looking to avoid deportation may apply for what is called “discretionary relief’ (e.g., asylum or adjustment of status) initially in an immigration court and then, if they lose, at the Board of Immigration Appeals (BIA). These immigration forums fall under the Department of Justice. Prior to Patel, immigrants who lost at the BIA could then ask a federal circuit court to review the factual findings of their case. Now, after Justice Barrett’s decision, Article III review is no longer available for such immigration proceedings involving discretionary relief.
The decision in Patel serves as an important backdrop for the subject of this study. A related, but distinct debate simmers one layer below the federal courts. Namely, the question is how much deference the BIA should give to factual determinations made by immigration courts of first resort in discretionary relief cases. Certain circuits have held that the BIA may intervene rather aggressively, while the largest circuit—the Ninth—has said that the BIA should display enhanced deference.
As this study argues, this circuit split conspicuously ignores how the dividing line between what is fact and what is discretion is often more blurred than discrete. Moreover, there is a gross inequity to this circuit discordance; the way that an immigrant’s appeal is analyzed and adjudicated depends upon the happenstance of the circuit from where that case originated.
For this reason, this article offers a new theoretical framework to improve the status quo. This model’s two-step proposal looks to raise the standard of justice in these immigration proceedings, remove the biases that presently favor the government, and provide greater fairness and equity across the circuits to immigrants seeking relief from deportation
Cannabis Derivatives and Trademark Registration: The Case of Delta-8-THC
Get PDFThe legal environment surrounding the cannabis industry is ambiguous and constantly changing. While cannabis is prohibited under federal law, a 2018 statute legalized a variant of the cannabis plant (“hemp”) that is low in its most common intoxicating agents. Recognizing this, entrepreneurs began to process hemp to extract and sell chemicals contained therein. Included in this trend is the extraction of Delta-8 Tetrahydrocannabinol (Δ8-THC)—a psychoactive drug with an increasing market presence in states where most cannabis (e.g., “marijuana”) is illegal.
As competition in the Δ8-THC field emerged, firms sought to distinguish their wares through brand recognition and federal trademark registration. However, the U.S. Patent and Trademark Office refuses to register these marks—arguing that Δ8- THC does not satisfy the requirement that products be used “in legal commerce.” On this point, the USPTO interprets relevant law as criminalizing the sale of Δ8- THC. That conclusion stands in contrast to determinations reached by the Drug Enforcement Agency and federal courts.
This Article addresses the propriety of federal registration of Δ8-THC trademarks. It critically analyzes the intersection of federal drug law, hemp’s legalization, and administrative regulations to answer the question. Based on this research, a strong case for the registration of Δ8-THC marks1 arises. This conclusion has public and private importance.
To seek registration of a Δ8-THC mark, applicants must aver that they use it in commerce. This could amount to admitting to the sale of an illegal drug—depending on the interpretation of somewhat ambiguous regulations. With this in mind, a law and strategy analysis is employed to explain why firms take that risk to seek trademark registration. On this issue, the Article identifies specific current market advantages and future strategic gains that warrant this exposure.
Further, public benefits of Δ8-THC registration are explored. A current concern in this largely unregulated market is the presence of harmful impurities in goods sold for human consumption. This issue can be mitigated by aligning the public interest in safe products with private financial incentives. Specifically, the ability to maintain strong trademark rights encourages the creation of goodwill through the sale of quality products. Recognizing this, firms are encouraged to reduce impurities in their Δ8-THC wares under the belief that this will benefit their reputation and thus increase sales
Worth a Shot: Encouraging Vaccine Uptake Through Empathy
Get PDFPro- and anti-vaccine organizations and individuals have frequently invoked empathy as a strategy for increasing uptake of COVID-19 precautions, including vaccinations. On one hand, vaccine supporters deployed empathy to defuse conflict, prioritize safeguarding the collective welfare, and avoid government mandates. On the other hand, vaccine opponents used empathy to emphasize the alleged individual effects of pandemic precautions, mobilize public voices, and stress the importance of medical freedom in policy-making contexts.
This Article first defines empathy and reviews empathy scholarship, paying particular attention to its relationship with narrative and the contexts where empathy can be difficult or dangerous. It then applies these perspectives to the issue of vaccine uptake. Finally, it deconstructs empathy messaging in pro- and anti- COVID-19 vaccine social media messaging and at a rally opposing Indiana University’s vaccine “mandate” on June 10, 2021
Voting by Proxy-Meddling in Foreign Elections and Public International Law
No full textFollowing the alleged Russian meddling in the 2016 US presidential election, there has been noticeable interest in the lawfulness of foreign interference in another state\u27s elections under public international law. The obvious lack of previous research on the issue is surprising, given that election meddling in other states has been a widespread practice since at least the end of World War II. Indeed, according to Dov Levin, between 1946 and 2000, the United States and the Soviet Union (and Russia) alone were responsible for 117 partisan electoral interventions in other states. What is more, meddling in foreign elections is effective. Based on his groundbreaking research on foreign interference in elections, Dov Levin has concluded, I find such interference to have a significant impact in the desired direction in most situations, frequently in a magnitude sufficient to determine the identity of the winner.
Why, then, this sudden interest in the topic? Most likely, this is due to the fact that, for the first time in ages, the United States was the target of a meaningful information operation initiated abroad, with the goal of influencing the outcome of a presidential election. However, many instead have argued that new means of technology have made it necessary to analyze the legal situation in more detail-the way social media enables foreign governments to target an audience of millions by spreading fake or manipulated news stories. While there can be no doubt that the internet has changed the dimensions of what is possible as far as spreading propaganda or misinformation is concerned, it is, nevertheless, not correct to claim that the election meddling of the past was much less intrusive. Rather, considering the contemporary means at the disposal of both the target states and the foreign intervenors, past election meddling has at times been comparable, if not more intrusive, than the Russian actions in the run-up to the 2016 election in the United States. Rather than limiting the discussion to cyber meddling, it is therefore justified to examine the lawfulness of election meddling as a whole, irrespective of the technical means employed.
In order to illustrate that election meddling is a long-standing practice and that past instances evidenced interference on a massive scale, I will first describe two well-known examples of outside interference in more detail-the massive US intervention in the Italian election of 1948 and the Russian interference in the US elections in 2016-before briefly turning to some other instances of alleged US and Russian election meddling. This will be followed by an in-depth analysis of the legality of foreign election meddling, which will conclude that the prohibition on interventions in the internal affairs of other states is the appropriate benchmark to decide whether a specific action by a state to interfere in another state\u27s election was lawful or not.
The analysis will necessitate a definition of what constitutes a prohibited intervention in the internal affairs of another state. Based on the partial definition the International Court of Justice (ICJ) provided, it needs to be established, firstly, whether the intervenor\u27s aim was to influence matters that belong to the target state\u27s protected internal affairs (domaine réservé). There is, however, widespread agreement that the process whereby a population chooses its government falls within the scope of the matters protected by the prohibition on interventions.
Secondly, for the intervention to be unlawful, it needs to be coercive. At what point mere interference morphs into a coercive intervention is very controversial. I will argue that, generally speaking, interference turns coercive when the target state cannot terminate the outside meddling at its pleasure. By differentiating lawful interference from possibly unlawful intervention, it will become obvious that states do have some leeway in trying to influence another state\u27s voters. Even if this is irritating to the target state, it is, for example, acceptable for a foreign government to express its preferences as to who ought to win an election in another state so that official criticism of a foreign party\u27s manifesto, or of statements made by foreign politicians, is similarly lawful. If, at the other end of the scale, the intervenor attempts to attack another state\u27s election procedure by manipulating vote counts, deleting or adding voters to electoral registers, or otherwise disrupting the electoral process, then the threshold of a coercive intervention is undoubtedly met. In my view, the same is true when a state engages in funding preferred parties or candidates in another state.
But the threshold of intervention is also met, I will argue, when actions that may well only be judged as persuasive if clearly attributable to a foreign state are instead undertaken in a deceptive, manipulative way. For example, when a state pays off target-state journalists so that they write or broadcast comment pieces favorable to the intervenor\u27s goals during an election campaign or initiates a campaign on social media, and thereby insinuates that the relevant posts were authored by target-state citizens, then that constitutes unlawful intervention. This is even more the case if the intervenor spreads fake news or engages in espionage to obtain information harmful to the disfavored candidate that is then published during an election campaign.
In these borderline cases, the difference between persuasion and intervention comes down to the deception. If a state openly articulates its preferences, the target state can react in all kinds of ways, and its citizens can evaluate the foreign state\u27s statements in the proper context. The manipulative intrusion, on the other hand, robs the target state of the opportunity to react and serves to confuse the electorate that, for example, may well judge a fellow citizen\u27s views differently than it would a foreign state\u27s opinion. This difference is also the reason for the deception on the part of the intervenor. The intervening state does not want to be recognized as such, well aware that its views otherwise might well be dismissed by target-state voters and refuted by the target state itself. By posturing as a target-state citizen or organization, the intervenor wants to prevent the target state from reacting, as there is no reason why a state should prohibit its citizens from expressing their views. The intervening state\u27s conduct thus amounts to coercion because it actively participates in another state\u27s election campaign in a way the target state cannot prevent or terminate. Furthermore, the intervening state cannot rely on any legal justification for its actions. Such actions are therefore unlawful interventions in the internal affairs of another state, whether successful or not.
My analysis of prohibited interventions will, however, also make the point that it is not always sufficient for an act to be coercive to be unlawful. Exceptionally, even a coercive intervention can be lawful if the means employed by the intervening state correspond with its sovereign right to decide its own external matters freely. For example, a state may threaten to impose economic sanctions on another state if a specific party is elected into power. Although frequently more coercive in effect than manipulating and deceiving voters during an election campaign, such a threat, nevertheless, is lawful, as there is still widespread agreement that it is at every state\u27s discretion to decide the states it wants to do business with. Furthermore, it is at least arguable that by announcing such measures before an election, the intervenor is providing target-state voters with factual information they may wish to consider when casting their vote.
Before concluding, I will briefly analyze other rules of public international law that may be implicated by election meddling and explain why I believe these rules are not as relevant to the discussion as the prohibition on interventions. Many authors argue that election meddling violates the target state\u27s sovereignty. And indeed, very often election meddling will also result in a violation of another state\u27s sovereignty. However, it is also true that many of the actions described previously do not violate another state\u27s sovereignty so that many of the intervenor\u27s actions would be left unregulated. More recently, Jens Ohlin has suggested that election meddling violates the target-state population\u27s collective right of self-determination. I will briefly set out why I believe this to be unconvincing based on the fact that, in my view, the collective right of self-determination of peoples in already existent states is one of the rights the prohibition on interventions protects.
In this article, I will not deal with the issue of attribution of election meddling to states, which, certainly in the cyber realm, has at times become an almost insoluble problem. Furthermore, I will not discuss whether a state has the duty to stop private individuals from intervening in another state\u27s elections. When actions of private individuals or companies are mentioned in this article, it will be assumed that the respective state instructed such private actors to undertake the intrusive actions described. Finally, as far as specific actions are attributed to specific states, I am relying on publicly available information. Obviously, I cannot judge whether the conclusions drawn as to a state\u27s responsibility are correct