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Care Reimagined: Transforming Law by Embracing Interdependence
Get PDFA review of All Our Families: Disability Lineage and the Future of Kinship. By Jennifer Natalya Fink
Favoritism, Coercion, and the Establishment Clause
Get PDFA review of Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience. By Nathan S. Chapman and Michael W. McConnell
Neutral Business Assistance and the Limits of Complicity Under International Criminal Law
Get PDFBusiness transactions between corporations and actors involved in grave human rights violations present significant challenges for the assessment of corporate criminal liability. This is particularly evident in cases of “neutral business assistance,” which refer to business conduct that appears legitimate on the surface and falls within day-to-day business operations but nonetheless contributes to the crime. An example of neutral business assistance is selling generic goods (for example, computer technology) legally at market rates, without the explicit intent to aid criminal activity, that increases the perpetrator’s capacity to carry out human rights violations. In such cases, discerning the point at which a legitimate business transaction becomes a wrongful act of complicity remains a complex and unresolved issue in international criminal law.
The doctrinal requirement for the wrongful act of complicity is that the assistance provided must have a “substantial effect” on the commission of the crime. Traditionally, this assessment has been grounded in a narrow factual analysis that primarily emphasizes the gravity of harm resulting from aiding and abetting. This one-dimensional approach to wrongfulness, however, oversimplifies the ethical complexities of criminal liability. It overlooks broader normative considerations and the positive societal impact of human cooperation. This article challenges the prevailing harm-based paradigm and introduces a more nuanced methodology to assess the wrongfulness of aiding and abetting across various contexts. To do so, the article embraces a broader perspective on the “substantial effect” criterion, one that takes into account the crucial normative dimension of balancing the harmful effects of aiding and abetting with their corresponding social benefits. As a result, the article outlines a refined theory of the actus reus of complicity that enables a more holistic evaluation of accomplices’ conduct
\u3cem\u3eCrawford\u3c/em\u3e at 20: An Introduction to the Symposium
Get PDFThe twentieth anniversary of Crawford v. Washington provides an ideal opportunity to reflect on the right of a criminal defendant to be confronted with the witnesses against him – on its origins and recent developments, current issues that it presents, paths that it may take, and other changes that it may generate. I am grateful to the Journal of Law Reform for organizing this symposium and to all the participants for having made it a success. In Section 1 of this introductory essay, I offer some comments on the origins, scope, and purpose of the confrontation right. Section 2 discusses the impact of Crawford and Section 3 indicates significant wrong turns that I believe the Supreme Court has made since issuing that transformative decision. Section 4 comments in particular on the oft-litigated topic of forensic lab reports. Section 5 shows how, even beyond the range of the Confrontation Clause of the Sixth Amendment to the United States Constitution, confrontation concerns may raise due-process issues. Finally, Section 6 discusses how Crawford might lead to a dramatic loosening and reshaping of American hearsay law
The International Tax Revolution: Introduction
Get PDF(This book chapter, Introduction, is included in the forthcoming book, titled THE INTERNATIONAL TAX REVOLUTION, which the Cambridge University Press will publish in 2024-25.)
The past decade has witnessed the creation of a new international tax regime (ITR). Since the advent of globalization in the 1980s and digitalization in the 1990s, the original ITR ceased to function as intended. The main problems were the increased mobility of capital related to intangibles, a relaxation of capital controls, and increased tax competition. The outcome was a significant fall in tax revenues that threatened the social safety net of the modern welfare state. The financial crisis of 2008 and harsh austerity measures led the public to pay attention to rich individuals and large corporations paying little tax on cross-border income. A new ITR has been created to resolve those problems. In particular, the United States enacted the Foreign Account Tax Compliance Act, which contributed for the OECD to develop a Common Reporting Standard for the automatic exchange of information; the OECD launched the Base Erosion and Profit Shifting project 1.0; and the EU enacted the Anti-Tax Avoidance Directives. These developments still have some limits, resulting in the advent of BEPS 2.0 consisting of two Pillars. The key question is how the new ITR will deal with inter-nation equity
Reimagining \u3cem\u3eYoungblood\u27s\u3c/em\u3e Bad Faith Requirement: Safeguarding Criminal Defendants\u27 Due Process Rights Through a Burden-Shifting Framework
Get PDFCriminal defendants face an uphill battle when attempting to prove that the government’s loss or destruction of evidence that could have played a significant role in their defense deprived them of their constitutional due process rights. To make this showing, the defendant must prove that the government lost or destroyed the evidence in bad faith. This requirement is problematic because direct evidence illustrating the subjective intent of the government officials who lost or destroyed the evidence is unlikely to exist, and in the off chance it does, the prosecution is unlikely to freely hand it over to the defendant. Thus, short of an admission from the government that it lost or destroyed the evidence in bad faith—which is also unlikely to happen—criminal defendants face an evidentiary void that makes it extremely difficult for them to satisfy the bad faith requirement, thereby limiting their ability to obtain constitutional recourse.
This Note proposes a burden-shifting framework that seeks to mitigate this problem. This framework effectively shifts the burden of producing evidence demonstrating the prosecution’s good or bad faith to the prosecution itself—the party best situated to make this showing. In so doing, it preserves the essence of the bad faith requirement—thereby increasing the Supreme Court’s receptiveness to adopting this change—while also rectifying the evidentiary imbalance between the prosecution and the defendant, making it easier for criminal defendants to satisfy the bad faith requirement and, consequently, vindicate their due process rights
Erasing Section 2?
No full textThis chapter traces the evolution of Section 2 of the Voting Rights Act since 1982. It shows how Section 2 displaced scores of electoral structures that inhibited minority political participation; how, in so doing, it fostered the proliferation of majority-minority electoral districts nationwide; how judicial distaste for these districts fueled sweeping decisions that dramatically narrowed Section 2’s reach; and how the Court’s recent decision in Allen v. Milligan has, for now, curbed that retrenchment. The chapter also describes recently articulated limits the Supreme Court has placed on Section 2 vote denial—as distinct from dilution—claims; and the way in which Section 2 doctrine in this arena now aligns with constitutional doctrine governing the right to vote under the Anderson-Burdick framework. The chapter argues that the systematic erosion of Section 2 stems from judicial apprehension that the provision, if read broadly, would, first, devolve into a mandate for proportional representation and, second, wholly supplant local control over elections. It closes by showing that these fears are largely unfounded, as the actual record of Section 2 litigation makes clear that the feared scenarios never came close to being realized. A divided Court acknowledged as much in Allen v. Milligan. That acknowledgment informed both its recognition of a particularly strong Section 2 claim and its rebuff of a broad constitutional challenge. Whether Milligan will support recognition of Section 2 claims that are less unequivocal or a more tempered constitutional challenge remains to be seen
The Twenty-Six Words That Created the Internet… and then Maybe, Kind Of, Destroyed Society: Understanding and Reforming Section 230 of the Communications Decency Act
Get PDFIn 1996, Congress passed Section 230 of the Communications Decency Act, a twenty-six-word law that immunized early internet companies from civil immunity arising from hosted, third-party content. At the time, the law was necessary to allow fledging companies to innovate without fear of bankruptcy-inducing lawsuits and ultimately helped to create the internet as we know it. To the extent this civil immunity has contributed to the vast technological advances over the past three decades, it should be lauded. However, the internet has dramatically changed in the past thirty years, and the law has been relied upon to protect companies in a wide variety of circumstances that its original drafters could not have imagined. Section 230 is now the target of numerous legal challenges, with plaintiffs arguing that its protection has gone too far and courts signaling their agreement. At the same time, government efforts to regulate large internet companies are being frustrated by those companies’ First Amendment rights. This has resulted in an untenable circumstance wherein technology companies are wholly unaccountable, immune to government regulation and civil liability alike. Good policy reasons remain to immunize certain conduct, but there is also an increasing need to allow government regulation. This article proposes a simple solution: solve one problem with the other; abolish Section 230 immunity and replace it with a new, better-tailored form of civil immunity on the condition that companies must opt-in to a regulatory regime aimed at resolving the myriad social issues they present. Because such an opt-in system is voluntary, it would avoid First Amendment issues faced by current legislative efforts. Ultimately, this solution would reinforce the benefits of civil immunity in cases where the courts have diminished Section 230 protection but only in those areas where society feels liability is appropriately waived. It would tailor the regime to the type of internet service being provided to better address the internet of today versus the internet of thirty years ago. It would provide a mechanism by which social media companies can be regulated without violating the First Amendment. It would also inject a market dynamic into the law, such that companies would only agree, provided the government’s burdens are not too severe. The modern internet is a place of wonders and horrors alike. We need to reinforce the good Section 230 has done for society but also address the internet’s modern threats. This article advances a way to do just that
Whose International Law Is It Anyway? The Battle over the Gatekeepers of Voluntarism
Get PDFInternational law has been ruled by the theory of voluntarism for the course of the last two centuries. It is currently being challenged by competing theories, which do not see states’ consent as the main justification for international law. The theories of naturalism, international constitutionalism, and communitarianism all consider justification for international law to lie elsewhere than the realm of consent. While each theory provides a different framework for explaining the validity of international law, they all seek to justify their dissent from consent. Naturalism, international constitutionalism, and communitarianism view states as participators in the making of international law alongside international institutions, nongovernmental organizations, international tribunals, and legal academia. Such entities harness the competing theories to dilute and nullify the traditional voluntarist doctrines of international law. This article aims to portray such phenomena and show how the theoretical supremacy debate is reflected in the contestation between states and non-governmental entities over the validity of the gatekeeper doctrines—the specially-affected states doctrine, the persistent objector doctrine, and the monetary gold principle. Diluting or reconstructing the gatekeeper doctrines may alter the way in which rules of international law are made, developed, and apply. This article argues that while the contestation may aid in the legal development of international law as parties take time to articulate and refine their legal positions regarding the gatekeeper doctrines, it has also created radicalization of positions and uncertainty regarding the gatekeeper doctrines’ content and applicability