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The Complicit Canon of Criminal Law: A Critical Survey of Syllabi, Casebooks, and Supplemental Materials
Get PDFThis Note analyzes the learning objectives, casebook readings, and supplemental sources that thirteen criminal law professors assigned over fifteen years and argues that the current approach to teaching criminal law is complicit in perpetuating the injustices of the American criminal legal system because it fails to adequately interrogate the carceral state and does not prepare students to become ethical practitioners or policymakers of criminal law. This paper calls for a fundamental rethinking of the purpose of teaching criminal law and recommends a reform orientation, which could be implemented through a variety of course structures
Subsidizing the Microchip Race: The Expanding Use of National Security Arguments in International Trade
Get PDFIn 2018, China, India, the European Union, Canada, Mexico, Norway, Russia, Switzerland, and Turkey lodged complaints with the World Trade Organization’s (WTO) Dispute Settlement Body (DSB) in the case of Certain Measures on Steel and Aluminium Products. Each State alleged that the United States had violated international trade law by imposing a series of aggressive tariffs on steel and aluminum imports. President Donald Trump’s administration responded to these allegations by claiming that its actions were permissible under Article XXI of the General Agreement on Tariffs and Trade (GATT); a long-standing exception built into the international trade law framework that allows States to restrict trade when doing so is vital to their national security. According to the United States, Article XXI granted it and other States near-total discretion when it came to defining their own security interests. The DSB Panel rejected this argument. Instead, the Panel asserted its own power to determine whether a State could claim the protection of Article XXI. When it came to American tariffs on imported metals, the Panel found that Article XXI was not appropriately implicated
On the Cultural Stakes of Deep Seabed Mining
Get PDFOwnership over the deep seabed and its mineral riches was unsettled until well into the twentieth century. Yet, by the 1960s, a remarkable spirit of universalism prevailed. States declared the deep seabed to be the common heritage of [hu]mankind, determining that its exploitation and protection would require collective management. The seabed beyond national jurisdiction (or, the “Area”) spans roughly half of the surface of the Earth. It contains critical minerals, such as cobalt and copper, which technological advances have rendered increasingly within reach. States have worked collectively and proactively to regulate the near-future exploitation of the deep seas, thus far acting squarely within the law of the sea. As the possibilities of commercial mining appear clearly on the horizon, and as the impacts of mineral extraction come more and more sharply into view, the time has come to reassess whether the (monumental) concept of common heritage—part of the law of the sea—is enough to balance equities among states, mining companies, and human populations affected by mining. Is the current law capable of adequately preserving fairness and equity among all stakeholders in isolation from the legal regimes for human rights, environmental protection, cultural heritage, and the protection of Indigenous peoples and local communities? These regimes emphasize that deep seabed mining is not just an economic pursuit, it is also one that affects the lives and identities of individuals and peoples—and provide legal tools and strategies for harmonizing those interests. Yet established rules and norms around participatory governance and cultural rights have been all but ignored within recent international negotiations about how to regulate seabed mining.
This Unbound Symposium uncovers neglected elements in the legal and political debates. While it is well understood that seabed mining will affect the marine environment, what impact might it have on underwater cultural rights and intangible cultural heritage? Can we expect litigation if our common heritage is not managed with future generations in mind? How can Indigenous peoples’ right to participation and free, prior, informed consent be realized? This introductory essay situates the debate around ownership and extraction in the Area in light of the stakes and stakeholders too often left to the side—particularly those of Indigenous peoples with claims to cultural connections to the Area. These stakes offer context for the different contributions to this symposium, which seek to challenge and advance these debates
Article 103 of the United Nations Charter: Uncharted Possibilities? The Ukraine Conflict and Beyond
Get PDFArticle 103 of the United Nations Charter establishes the primacy of states’ obligations under the Charter over their other international obligations. The effect of Article 103 on states’ obligations has been discussed in the jurisprudence and literature but only in the context of obligations conflicting with binding Security Council decisions. Those discussions fail to shed light on its legal significance in a variety of other situations. This writing explores the application of Article 103 in other contexts. It explores the legal ramifications of Article 103 applied to states’ obligations that conflict with the Charter itself, with obligations contained in certain General Assembly resolutions, and with International Court of Justice (“ICJ”) judgments. The importance of filling this gap can be seen when applying the rule in Article 103 to the conflict in Ukraine, including to the Ukraine v. Russia case under the Genocide Convention before the ICJ, as a case study
Aggressor State, Aggressor Individual, and What International Law Does/Should Protect
Get PDFThis note examines the measures taken against Russian citizens in the context of the Russo-Ukrainian War in positive international law and analyzes the rationale for sanctioning individual citizens of an aggressor state. It questions whether the gravity of state aggression by Russia enables measures targeting individuals based solely on their Russian citizenship by investigating whether the blanket denial of asylum and imposition of travel bans for Russian citizens constitutes a breach of norms of international law. It further tests this citizenship link by turning to the legality of denationalization of pro-Russian Ukrainian citizens under international law. Building on this foundation, the note probes the existing schemes of responsibility under international law and corporate law to delve into how international law should approach citizens of an aggressor state
Old, Not Odd: Running Laches Against the States and the Future of Antitrust After \u3cem\u3eNew York v. Meta Platforms\u3c/em\u3e
Get PDFIn New York v. Meta Platforms, Inc., the United States Court of Appeals for the D.C. Circuit applied equitable laches to an antitrust lawsuit brought by forty-six state attorneys general, holding that they had not brought their claims in their role as law enforcers. Meta Platforms is the latest in a line of cases that has characterized antitrust actions by state attorneys general as non-public and non-governmental. But this characterization is in tension with the historical role of state attorneys general in enforcing the antitrust laws and undermines the original design of the federal antitrust statutes as supplements to state enforcement activities. This Note argues that state antitrust enforcement is an insurance policy against federal underenforcement and a mechanism to reflect the popular will. The Meta Platforms decision observed that the status of the states as plaintiffs independently factors into the court’s laches analysis. This observation—which this Note calls “the states factor”—suggests that all else equal, a suit brought by the states to vindicate a quasi-sovereign interest on behalf of its citizens is less likely to be stale than a similar one from a purely private actor. If courts afford limited weight to the “states factor” and run laches against elected antitrust enforcers, they make the federal statutes less efficient for their original purpose of supplementing state enforcement activity
Legally Magic Words: An Empirical Study of the Accessibility of Fifth Amendment Rights
Get PDFFifth Amendment case law (including Miranda v. Arizona) requires that individuals assert their right to counsel or silence using explicit, clear, and unambiguous statements - or, as some dissenting judges have lamented, using legally magic words. Through a survey of 1,718 members of the U.S. public, we investigate what ordinary people believe it takes to assert the right to counsel and the right to silence. We then compare their perceptions against prevailing legal standards governing invocation.
With respect to the right to counsel, the survey results indicate that members of the public have a uniformly lower threshold for invocation than do courts. Statements that courts have deemed too ambiguous (e.g., I\u27ll be honest with you, I\u27m scared to say anything without talking to a lawyer. ) are perceived by a large majority of survey respondents as invoking the right to counsel. With respect to the right to silence, the survey results suggest that people overwhelmingly believe that remaining silent for several hours constitutes invocation of the right to silence and expect that their silence cannot be used against them - including in situations where, in fact, it can be. Across an array of fact patterns and demographic subgroups, respondents consistently set the bar for invoking Fifth Amendment rights lower than courts.
The stark disconnect between what the public takes as sufficient to invoke these rights and what courts hold as sufficient suggests that the rights to counsel and silence are largely inaccessible to ordinary people. Notably, standard Miranda warnings do not include instructions regarding how one must speak in order to invoke those rights. We conclude that when courts set the threshold for invocation above where the average citizen believes it to be, they effectively place key procedural rights out of reach
Finding the Thinkable Thoughts
Get PDFWhen John B. West developed his legal classification system in the 1880s, he likely didn’t anticipate that his system of indexing the law would persist into the twenty-first century. But persist it has, and flourished, most prominently in the form of Westlaw’s headnote and key number system. West’s index built on several precursors, but it was his version, West’s American Digest, that established the foundations of the classification system that most modern legal researchers use today, in one form or another.
This history—of the late-nineteenth-century fascination with indexing—and much more is told in charming detail in Dennis Duncan’s Index, A History of the. Anyone interested in how we classify, find, and use information is likely to be intrigued by the book’s recounting of the life of this tool. The index is nearly ubiquitous in non-fiction materials today, yet we tend to take for granted what a remarkable tool it is. And that includes, of course, lawyers and other legal researchers. While the book does not address legal indexes specifically, its discussion of the history, purposes, and substance of the index calls to mind modern legal indexes like Westlaw’s headnote and key number system
Confrontation, the Legacy of \u3cem\u3eCrawford\u3c/em\u3e, and Important Unanswered Questions
Get PDFThe right to confront has a long history. In the United States, the Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him[.]” One of the most troublesome areas of Confrontation Clause jurisprudence has been the Clause’s application to “hearsay statements offered against a criminal defendant pursuant to a hearsay exception or exemption[.]” The Supreme Court’s confrontation analysis in this situation once hinged on the statement’s reliability, with the traditional hearsay rule and its exceptions and exemptions as a guide. But in Crawford v. Washington, the Court considered the right’s historical background and concluded that the anal- ysis should instead be focused on testimoniality: unless the declarant currently testifies, “[w]here testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford intentionally eschewed defining “testimonial,” perhaps because it would have been challenging to anticipate the consequences of its testimonial approach in various circumstances without specific context. Subsequent cases have sought to interpret Crawford and further define “testimonial,” but many unanswered questions remain. The purpose of this article is to highlight certain important such questions
Protecting the Sovereign\u27s Money Monopoly
No full textSovereign states have held a monopoly over the production of circulating money for well over a century. Governments, not private entities, issue circulating money. The advent of stablecoins—privately issued digital money that can circulate—raises the question of the sovereign’s money monopoly from the grave. Should private money circulate alongside sovereign money in the twenty-first century? We argue against coexistence to preserve financial stability and monetary sovereignty.
Through the lens of economic theory, we explore the coexistence question by revisiting the original debates that led to the sovereign’s money monopoly in England, the United States, Canada, and Sweden. In each case, private money first circulated because of a limited money supply—namely, a shortage of specie— and because there were no better alternatives. However, after the development of modern central banking and sovereign fiat money, these governments banned or taxed the circulation of private money to improve financial stability and gain greater control over the money supply. Notably, in the United States, Congress enacted a 10% tax on the circulation of private money in 1865 that stayed on the books until 1976, when Congress deleted provisions from the Internal Revenue Code deemed “obsolete” or “unimportant and rarely used” from a tax perspective.
Today, many U.S. lawmakers assume that coexistence is the optimal path forward and are crafting legal guardrails under that assumption. We argue that lawmakers should instead seek to maintain the government’s monopoly by creating a better sovereign alternative in the form of a central bank digital currency (the carrot) and deterring the adoption of stablecoins through a ban or a tax (the stick)