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Sovereign Debt Speculation: A Necessary Restraint Justified by a Concern for Debt Sustainability
Get PDFThe actions of funds speculating in sovereign debt, frequently nicknamed “vulture funds”, are often roundly criticized. These funds purchase distressed debts on the secondary market at reduced prices and then seek payment in court at face value plus interest and fees. Although their actions are legally justified, so-called “vulture funds” are vilified due to the negative impact of their activities on sovereign debtors and their population. While there is a strong demand for regulating sovereign debt speculation, various solutions already exist but are, in many ways, insufficient. This article argues for the adoption of a tailored regulation of the speculative phenomenon by the United States. The article explains that sovereign debt sustainability is the only standard that can ensure the balance between the rights of creditors and the proper functioning of debtor states. This argument justifies the regulation of speculative activities as well as the magnitude that this regulation should take
The Oligarchic Courthouse: Jurisdiction, Corporate Power, and Democratic Decline
Get PDFJurisdiction is foundational to the exercise of judicial power. It is precisely for this reason that subject matter jurisdiction, the species of judicial power that gives a court authority to resolve a dispute, has today come to the center of a struggle between corporate litigants and the regulatory state. In a pronounced trend, corporations are using jurisdictional maneuvers to manipulate forum choice. Along the way, they are wearing out less-resourced parties, circumventing hearings on the merits, and insulating themselves from laws that seek to govern their behavior. Corporations have done so by making creative arguments to lock plaintiffs out of court and push them into arbitration, and failing that, to lock plaintiffs into federal court rather than state court, or to punt federal cases to administrative agencies that may lack the power or will to resolve the underlying issues in the case. These efforts have largely been successful. This Article offers a panoramic view of how over recent decades federal courts have acquiesced in a corporate-driven effort to leverage jurisdictional doctrines to their unique private advantage, and contends that together, these doctrinal changes constitute an inflection point in U.S. law and procedure. We argue that corporate adjudicatory practice has slanted judicial power in favor of deregulatory efforts that undermine legal commitments to equality, dignity, and participation. The shifts in jurisdiction, which may seem to be merely technical and apolitical, are a core part of the architecture of what we call the oligarchic courthouse—one where courts as public institutions transform their procedures to meet private, corporate interests at the expense of public goals, thereby cementing economic power and translating it into concentrated political power that undermines the possibility of robust democratic life.
The trends we describe in federal subject matter jurisdiction resonate with earlier corporate battles at the turn of the twentieth century. But the construction of today’s oligarchic courthouse holds implications for democracy that are not simply a reprise of earlier corporate efforts. To show the scope of the implications, the Article steps back and clarifies why jurisdiction matters to democracy. Drawing on law and social mobilization literature, we argue that jurisdiction functions as a political resource that facilitates opportunities for democratic contestation and both reflects and shapes the openness and closedness of the state. Having centered jurisdiction in a larger account of democracy, we explore how the oligarchic courthouse, by entrenching economic power and narrowing participatory options for workers, consumers, and other less-resourced litigants, can be nested in a larger account of democratic decline in the United States
Racism Pays: How Racial Exploitation Gets Innovation Off the Ground
Get PDFRecent work on the history of capitalism documents the key role that racial exploitation played in the launch of the global cotton economy and the construction of the transcontinental railroad. But racial exploitation is not a thing of the past. Drawing on three case studies, this Paper argues that some of our most celebrated innovations in the digital economy have gotten off the ground by racially exploiting workers of color, paying them less than the marginal revenue product of their labor for their essential contributions. Innovators like Apple and Uber have been able to racially exploit workers of color because they have monopsony power to do so. Workers of color have far fewer outside options than white workers, owing to intentional and structural discrimination against workers on the basis of their race. In the emerging digital economy, racial exploitation has paid off by giving innovators a workforce that is cheap, easy to scale, flexible, and productive—the kind of workforce that is especially useful in digital markets, where a first-mover advantage often translates to winner-take-all. This Paper argues that these workers should be paid the marginal revenue product of their labor, and it proposes a number of potential ways to do so: by increasing worker compensation or worker power. More generally, I argue that we should value the essential contributions of workers of color and immigrant workers who make innovation possible
The Preservation of the Separate Spheres Doctrine in Congress and the Federal Courts
Get PDFIn Bradwell v. State, an 1872 decision upholding an Illinois law prohibiting women from practicing law, the United States Supreme Court reasoned that the law was justified because women belonged in the “domestic sphere.” While today’s sex-based workplace exclusions are not as explicit as they once were, women still face barriers to remaining in the workforce and advancing in the workplace despite the existence of major federal legislation in the areas of pregnancy discrimination and family leave policy. Congress passed the Pregnancy Discrimination Act (PDA) in 1978 to stop pregnancy discrimination, but the PDA has not come close to eliminating pregnancy discrimination. Similarly, despite Congress’s passing of the Family and Medical Leave Act (FMLA) in 1993, ineffective family leave policy continues to hinder women’s ability to balance work and their disproportionate family caregiving obligations. After tracing the development of sex-based workplace exclusions from the 1870s through the 1970s, this Note argues that the PDA and FMLA prohibited explicit sex-based workplace exclusions while preserving other forms of sex-based workplace exclusions. This Note then analyzes proposed work-family legislation and argues that policies aimed at eliminating sex-based workplace exclusions must account for the specific experiences of women while promoting anti-stereotyping principles
Constructing Race and Gender in Modern Rape Law: The Abandoned Category of Black Female Victims
Get PDFDespite the successes of the 1960s Anti-Rape Movement, modern state rape statutes continue to prioritize white male perspectives and perceptions of race, ultimately ignoring the intersectional identity of Black women and leaving these victims without legal protection. This Note examines rape law’s history of allocating agency along gendered and racialized lines through statutory construction and other discursive techniques. Such legal constructions both uphold and cultivate the white victim/Black assailant rape dyad primarily by making the Black male the “ultimate” and most feared assailant. Rape law’s adherence to a white baseline sustains stereotypes of Black men as criminals and predators, which ultimately relegates Black women to a category of lesser and undeserving victims. Re-focusing rape reform and feminist movements on Black female experiences, as well as a rhetorical restructuring of rape laws, can improve rape law uniformity and remove white normativity standards. A departure from the current rhetorical and realized white baseline can eliminate rape law’s delineations of femininity that silence women of color
Fee Shifting, Nominal Damages, and the Public Interest
Get PDFAs the Supreme Court recognized in its 2021 decision in Uzuegbunam v. Preczewski, nominal damages can redress violations of “important, but not easily quantifiable, nonpecuniary rights.” For some plaintiffs who establish a violation of their constitutional rights, nominal damages will be the only relief available. In its 1992 decision in Farrar v. Hobby, however, the Court disparaged the nominal-damages remedy. The case involved the interpretation of federal fee-shifting statutes, which enable prevailing civil rights plaintiffs to recover a reasonable attorney’s fee from the defendant. According to Farrar, a plaintiff can prevail by obtaining the “technical” remedy of nominal damages, but the only reasonable fee for such a plaintiff might be “no fee at all.”As this Article explains, the Court’s opinion in Farrar v. Hobby is an outlier among both the Court’s nominal-damages cases and its fee-shifting cases. It has led to significant confusion in the lower courts, and in one manifestation of that confusion, many courts have resolved fee disputes by looking to their own views of the public interest value of the litigation. Not only is that approach unwise, but it is also contrary to constraints the Supreme Court has imposed in other fee-shifting cases. The Court or Congress should step in to clarify matters. In the meantime, lower courts should abandon the public-interest inquiry that many of them have adopted
Antitrust and the Corporate Tax, 1909–1928
No full textIn “Antitrust and the Corporate Tax, 1909–1928,” Reuven Avi-Yonah examines a twentieth-century antitrust measure that lay outside the Sherman Act per se—the corporate tax act of 1909. After the enactment of the Clayton Act and the creation of the FTC in 1914, the corporate tax’s antimonopoly reputation faded somewhat. Between 1919 and 1928 most of its antitrust features were eliminated, and they would not be revived during the New Deal. Nevertheless, Avi-Yonah argues that the corporate tax still retains some potential to contribute to limiting the power of monopolies, especially if the progressive corporate tax rate structure adopted in the 1930s and abolished in 2017 is revived
Be an International Extern!
No full textA Winter 2023 poster advertising application deadlines for Michigan Law international externships in Geneva, South Africa, and Indiahttps://repository.law.umich.edu/posters/1827/thumbnail.jp
The Problematic Structure of Indigent Defense Delivery
Get PDFThe national conversation about criminal justice reform largely ignores the critical need for structural reforms in the provision of indigent defense. In most parts of the country, decisions about how to structure the provision of indigent defense are made at the local level, resulting in a fragmented patchwork of different indigent defense delivery systems. In most counties, if an indigent criminal defendant gets representation at all, it comes from assigned counsel or flat-fee contract lawyers rather than public defenders. In those assigned-counsel and flat-fee contract systems, the lawyers representing indigent defendants have financial incentives to get rid of assigned criminal cases as quickly as possible. Those incentives fuel mass incarceration because the lawyers put less time into each case than their public defender counterparts and achieve poorer outcomes for their clients. Moreover, empirical research shows that assigned-counsel and flat-fee contract systems are economically more costly to the public fisc than public defender systems.
This Article collects data from across the country to show how prevalent assigned- counsel and contract systems remain, explains why arguments in favor of substantial reliance on the private bar to provide for indigent defense are outdated, argues that more states need to move toward state-structured public defender models, and outlines how it is politically possible for stakeholders to get there