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Investment Treaty Arbitration Caught in The Public-Private Law Divide
Get PDFThe ongoing reform of investor-state dispute settlement (“ISDS”) underlines the pertinence of an old question that has received various and conflicting answers: Is investment arbitration a public or private method of dispute settlement? A key criticism leveled at investment treaty arbitration is that public interest disputes are decided by a system of private justice. This article critically reviews the dominant interpretations of investment treaty arbitration as public, private, or hybrid. It argues that the subjective nature of each interpretation means that none of them can be definitively adopted. Rather, the real arguments in favor of or against arbitration lie beyond the traditional debate. The article shows that investment arbitration displays important commonalities with international court systems, with its presumed unique features—including party autonomy—appearing a little less unique on closer inspection. Ultimately, a system is what states make it, irrespective of whether its particular features are described as public or private
A Republic of Spending
Get PDFLarge-scale spending measures make up many of Congress’s most important recent contributions to national policymaking. Congress has appropriated trillions of dollars to respond to emergencies, fight climate change, expand social safety net programs, spur technological innovation, and strengthen national infrastructure. While the contemporary Congress’s failure to enact landmark regulatory statutes causes many to characterize it as dysfunctional, Congress in fact remains quite active—its policymaking energy is simply concentrated in the spending domain.
Congress’s use of spending rather than regulatory legislation as its primary way of shaping national policy marks a significant shift in American governance. This Article examines the causes and consequences of that change. For Congress itself, spending has several advantages over regulatory lawmaking: spending measures can circumvent the Senate filibuster, changes in both political parties have tilted the political playing field toward spending, public choice dynamics often make spending more attractive to Congress than regulating, and spending is much less vulnerable than regulation to constitutional judicial review. But from the standpoint of the public interest, there is reason for concern about spending eclipsing regulatory legislation. Spending alone does not allow Congress to address all policy problems, and many pressing national issues cannot be remedied through spending. Spending also does not always allow Congress to deploy the most effective solutions to those problems that it does address. Moreover, normative arguments in favor of spending over regulation, such as arguments based on liberty or democracy, are weaker than they appear at first glance.
This account holds several lessons for a public law literature that has too often marginalized Congress. The spending domain provides a case study of Congress acting as a central national policymaker with the judiciary playing only a marginal role; it thus illustrates a road not traveled for our otherwise court-centered constitutional system. More practically, in the face of obstacles to regulatory legislation, spending can provide Congress with a meaningful (if indirect) way of advancing regulatory goals. Institutions and doctrines change over time, however, and greater congressional reliance on spending could lead to future efforts—most notably in the courts—to narrow Congress’s spending power
#EmployersToo: Expanding Vicarious Liability for Sexual Harassment in Title VII and Tort Law
Get PDFWhen an individual experiences sexual harassment through a workplace, she has limited options for recourse. One seemingly promising possibility is bringing a claim against her perpetrator’s employer. But this option—achievable through vicarious liability—has failed to realize its potential. In 1998, the U.S. Supreme Court established a standard to enforce vicarious liability for sexual harassment claims under Title VII. That standard, though, was limited in scope to begin with and has further narrowed over time. Common law principles also allow courts to hold employers vicariously liable for sexual harassment in tort. But few jurisdictions have adopted those principles, and there is no unified system governing all jurisdictions.
This Note makes the case for expanding vicarious liability for sexual harassment claims, both under Title VII and in tort. Workplace sexual harassment is an epidemic that we know more about now than ever before, and that is in dire need of solutions. Expanding vicarious liability is one such way to address sexual harassment, and now is the time to act. Almost a decade out from the #Me- Too movement, its accompanying revelations about work and violence, and its resulting individual accountability, this Note contends that employers must be held accountable, too
An Artificial Intelligence Report Card for Judicial Review
Get PDFThe rapid advancement of technology, including artificial intelligence (AI), is creating new challenges for judicial review under the Administrative Procedure Act (APA). In late 2023, federal administrative agencies publicly disclosed over 700 use cases of AI that employ sophisticated techniques like machine learning and natural language processing. While the APA\u27s flexible judicial review framework certainly allows agencies to utilize new technologies, the APA also requires explainability of agency decisions; thus, agencies must be able to articulate the reasoning and methodology behind AI-enabled decisions for the purpose of judicial review. This Article examines APA judicial review as it applies to agency adoption of AI by examining how courts have previously assessed agency predictive and computer models. It summarizes current federal agency AI use cases and techniques and proposes an Lil report card. This report card is designed to direct judicial review towards essential attributes of AI implementations, ensuring courts focus on evaluating the training data, model design, intended uses, validation practices, and performance metrics of AI models. Through this lens, the Article seeks to offer a structured approach for courts in assessing the rationality of agency decisions informed by AI models under the arbitrary and capricious review standard
Front Matter
Get PDFFront Matter for Volume 13, Issue 2 of Michigan Business & Entrepreneurial Law Revie
Felony Disenfranchisement and Voter Turnout: Randomized Trials in Iowa and Washington
No full textPrior to the 2022 midterm elections, we conducted large-scale randomized controlled trials in Iowa and Washington aimed at increasing voter turnout among newly enfranchised individuals with past felony convictions. Alongside national and grassroots partners, we designed and implemented experiments to ascertain the effectiveness of alternative outreach mechanisms, including targeted mailers and digital ads. We did not detect statistically significant or economically meaningful effects on voter registration or turnout; most observed effects were precise nulls. The absence of measured impact is likely attributed to low digital engagement with our online ads as well as extensive voter outreach already conducted by our local partners prior to the study. Our evidence highlights the importance of context in voter outreach efforts, as the political and legal environment in Iowa and Washington differed significantly from other regions where similar interventions had previously shown success
Taxing Fat Cats Abroad
No full textOn January 12 the IRS announced that it was able to collect 1 million in income and more than 38 million from more than 175 high-income earners. The IRS last fall began contacting about 1,600 new taxpayers in this category that owe hundreds of millions of dollars in taxes. The IRS has assigned over 900 of these 1,600 cases to revenue officers, with over 520 million. [Emphasis in original.
Can the Economic Substance Doctine Be Revived?
No full textIn two recent instances, the IRS has asserted the economic substance doctrine (ESD) to challenge transactions that comply with the literal text of the code. First, in Liberty Global, the IRS successfully asserted the ESD to deny tax benefits claimed by Liberty Global — namely, a section 245A deduction for a dividend out of foreign earnings that would normally be subject to global intangible low-taxed income — by relying on a mistake in effective dates under the Tax Cuts and Jobs Act. In granting summary judgment, the district court held that the doctrine looks to whether the tax benefits achieved in a transaction violate congressional intent and that satisfying the doctrine requires undertaking an analysis using the statutory prongs of section 7701(o). According to the court, the core purpose of the ESD is to prevent business organizations from entering schemes to evade taxes under circumstances in which Congress would not have intended for the laws to apply. The court concluded that the ESD applied to the transaction and denied the tax benefits. Liberty Global has appealed to the Tenth Circuit, arguing that the ESD was not “relevant” to a transaction that complied with the unambiguous text of the code
Antitrust After the Coming Wave
No full textA coming wave of general-purpose technologies, including artificial intelligence ( AI ), robotics, quantum computing, synthetic biology, energy expansion, and nanotechnology, is likely to fundamentally reshape the economy and erode the assumptions on which the antitrust order is predicated. First, AI-driven systems will vastly improve firms\u27 ability to detect (and even program) consumer preferences without the benefit of price signals, which will undermine the traditional information-producing benefit of competitive markets. Similarly, these systems will be able to determine comparative producer efficiency without relying on competitive signals. Second, AI systems will invert the salient characteristics of human managers, whose intentions are opaque but actions discernible. An Al\u27s intentions -its programmed objective functions-are easily discernible, but its actions or processing steps are a black box. Third, the near-infinite scalability of the technologies in the coming wave will likely result in extreme market concentration, with a few megafirms dominating. Finally, AI and related productive systems will be able to avoid traditional prohibitions on both collusion and exclusion, with the consequence that antitrust law\u27s core prohibitions will become ineffective. The cumulative effect of these tendencies of the coming wave likely will be to retire the economic order based on mandated competition. As in past cases of natural monopoly, some form of regulation will probably replace antitrust, but the forms of regulation are likely to look quite different. Rather than attempting to set a regulated firm\u27s prices by determining its costs and revenues, the regulatory future is more likely to involve direct regulation of an Al\u27s objective functions, for example by directing the AI to maximize social welfare and allocate the surplus created among different stakeholders of the firm
Why We Should Stop Talking About Violent Offenders: Storytelling and Decarceration
No full textThe movement to decarcerate risks foundering because of its failure to grapple with so-called violent offenders, who make up nearly half of U.S. prisoners. The treatment of people serving sentences for offenses categorized as violent is a primary reason for the continued problem of mass incarceration, despite widespread awareness of the phenomenon and significant bipartisan interest in its reduction. People convicted of “violent offenses” are serving historically anomalous and excessively long sentences, are generally denied clemency and compassionate release, and are excluded from a wide array of legal reform and policy changes with decarceral aims. Keeping these people in prison for life or near-life sentences is extraordinarily expensive for state budgets, largely unnecessary from a public safety perspective, and cruel and unusual punishment from the viewpoint of international and historical standards. While the moral imperative to release those serving draconian sentences for nonviolent drug offenses is widely if not universally accepted, such efforts will ultimately be a drop in the bucket if we fail to address the 58% of state prisoners who are serving sentences for offenses categorized as violent.
Quantitative data about the low rates of recidivism for people released after serving long sentences for “violent offenses” will not alone shift the focus of our policies or politics. Rather, we need to develop a more nuanced understanding of “violent offenses” and “violent offenders” by hearing the voices of people who have been directly impacted by violence and by the system’s response to violence. These are, in many cases, the same people. Their stories are complex and human, defying simplistic narratives about innocent victims and bad offenders. Storytelling offers possibilities for reconceptualizing the stale terminology around violence and for shifting the discourse.
This Article draws on insights from the literature on epistemic injustice and criminal law democratization, together with the legal storytelling literature. It explores the power of storytelling as an advocacy tool in the slow work of person-by-person decarceration during back-end processes like clemency, parole, and compassionate release, as well as part of the broader movement for systemic decarceration. Storytelling is an important tool for advocates working within the system, as well as for abolitionists seeking to end the system. In some contexts, advocates and activists are best situated to tell these stories, but ultimately people should be given the opportunity and tools to tell their own stories