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What\u27s in a number? Basic statistical literacy for lawyers
Get PDFThere is a running joke within the legal profession that lawyers choose to go to law school because they are bad at math. Facially, this proposition makes sense. The bread and butter of the legal profession is written and oral advocacy, not numbers and arithmetic.
But the legal profession has never existed outside of the realm of numbers. And in today’s world of big data where judges’ decisions and opposing counsel’s actions can be quantified and packaged into orderly statistics, basic statistical literacy is a critical part of legal research and practice
Copyright Infringement and Enforcement in Ghana: A Comparative Study
Get PDFCopyright infringement is a widespread problem in developed and developing nations and particularly concerning in Ghana. Many talented creators in Ghana have a strong desire to produce original creative works and are enthusiastic about committing themselves to this pursuit. Additionally, many more aspire to pursue these endeavours into professional careers. However, upon releasing their works, they are unfortunately immediately faced with infringements in nearly all copyright industries. These violations have become so common that they have unfairly placed rightsholders’ original works in competition with the infringers. Within this context, many talented creators, mostly self-funded, lack the incentive to pursue their work and are abandoning their creative initiatives. As a result, it contributes to a shortage of domestically generated copyrighted content, which contradicts Ghana’s copyright objective of expanding knowledge accessibility, inadvertently leading to a preference for foreign cultural materials. This contradiction is attributable to the inaccessible and inefficient strategies of enforcement mechanisms to support infringement pursuits. The existing mechanisms are costly and slow, frustrating rights holders and exacerbating the cost implications. While copyright is fundamentally a private right, there is still reason to be concerned about the matter due to its significant impact on the public, particularly regarding access to the knowledge contained in copyrighted works. Thus, if access to knowledge is of public interest and a goal of copyright, the conditions that encourage and drive the creation of works worth accessing should also be a matter of public interest. To address this issue, in this dissertation, I first explore the nature of infringements and how the obstacles to enforcement manifest in Ghana. I then compare approaches taken to combat infringements in Kenya, Nigeria, and the United States, aiming to gain a multi-faceted perspective on feasible solutions. Based on this analysis, I offer proposals to help promote enforcement and create an effective and functional copyright system in Ghana. While an effective and functional copyright system may not completely resolve issues related to copyright infringement in Ghana, it can facilitate fair competition and help strike a balance between content protection and access to copyrighted works
Learning From Land Use Reforms: Housing Outcomes and Regulatory Change
Get PDFThis essay serves as the introduction for an edited, interdisciplinary symposium of articles studying recent land use reforms at the state and local level. These papers provide important descriptive analyses of a range of policy interventions, using quantitative and qualitative methods to provide new empirical insights into zoning reform strategies.After situating and summarizing the collected articles, the Introduction draws out shared themes. For example, these essays demonstrate the efficacy of recent reforms, not only at facilitating housing production but at doing so in especially difficult contexts (like when producing affordable housing and redeveloping single-family neighborhoods). They point to the characteristics of neighborhoods that may be most affected by land use reforms. They show the importance of close attention to forms of tenure and continued demand for ownership models even in densifying locations; the risks of inclusionary zoning as a strategy; and the importance of continued tinkering with policy details for successful implementation
Public Duties for the New City
Get PDFThe first job of a government is to protect its people, and, in the United States, the government ostensibly performs this job through the police. But policing in America is deeply dysfunctional, as the police not only provide inadequate protection from violent crime, but simultaneously engage in outright acts of brutality against the citizenry. As awareness of these practices has swept across the nation, legal scholars and policymakers have offered numerous reforms and remedies to help solve policing’s problems. The responses have tended to focus on the top of the legal pyramid, using the big hammers of the federal government, the Constitution of the United States, the federal remedies of Section 1983, and the qualified immunity doctrine of federal courts as the requisite tools for reform. More recently, as these efforts have faltered, scholars and policymakers have begun to explore the possibilities for change at the state and local level.
This Article, too, begins at the bottom. While the proposed fixes to the federal framework are indeed important, this Article argues that changes at the lower, foundational level of cities, local governments, and common law duties of care are equally so. Policing is, after all, a fundamentally local matter, with thousands of municipal and county governments responsible for its administration. And duties of care are the most basic articulation of the norms and obligations flowing between members of our society, shaping not just private relations, but the government-constituent relationship as well. This Article argues that attending to these roots offers an opportunity to reorient the police-citizen relationship and recast the relational norms between local government actors and their constituents more generally. In particular, this Article argues that the “public duty doctrine”—a no-duty rule that immunizes municipalities from civil liability arising from police violence and failures to protect—has contributed to a profoundly unbalanced and perverse local-constituent relationship. To reestablish just relations, localities should bear, and indeed embrace, a legally enforceable duty of care to protect their constituents.
Such a duty would not open the liability flood gates, nor impose catastrophic expenses on cities, nor expand the already oversized footprint of policing. Such a duty would, however, achieve the usual tort goals of compensation and deterrence, significantly reduce the harms that police and other governmental actors visit on city constituents through both their action and inaction, align with corrective justice principles, enhance democratic accountability, advance the constitutional principle of equal protection, and accord with the thick conception of the city-constituent relationship that cities themselves put forward in the affirmative litigation context.
Further, implementing this duty on the ground would not be difficult. Neither courts nor legislatures need do anything at all; many cities could simply choose to not avail themselves of the public duty defense and instead accept an owed duty. Doing so would not only reorient the city-constituent relationship in a profoundly more positive way; adopting this duty would also serve cities’ broader self-interest. As cities increasingly vie for political recognition and acknowledgement as independently legitimate polities on both the domestic and international stage, this Article draws on the burgeoning sovereignty-as responsibility literature to argue that by embracing a duty to protect, cities can advance their own status as credible, politically important actors in the wider American democratic project
Shedding New Light on Multinational Corporations and Human Rights: Promises and Limits of “Blockchainizing” the Global Supply Chain
Get PDFOver the last few decades, advances in transportation and production technology, in conjunction with economic globalization and the emergence of multinational corporations, have consolidated fragmented production processes into long and complex supply chains across jurisdictions. While there are benefits to such global supply chains (“GSCs”), the prevalence of human rights violations attributable to information asymmetry, as well as rule of law gaps between different jurisdictions, has been a constant challenge. Modern slavery, child abuse, harsh working conditions, low wages, and other problems have reoccurred in the factories of upstream suppliers in the global South and have been systemically ignored by buyers in the global North. As such, how to alleviate human rights abuses along GSCs is indeed a daunting problem.
Today, various public, private, and hybrid approaches have been designed and implemented at different levels by different actors to address GSC human rights challenges, such as the United Nations’ Guiding Principles on Business and Human Rights (“UNGPs”), the Organization for Economic Co-operation and Development’s (“OECD”) Guidelines for Multinational Enterprises, the United Kingdom’s Modern Slavery Act, the United States’ Dodd-Frank Act, the Responsible Business Alliance Codes of Conduct, and the Social Accountability 8000 International Standard. However, these public, private, and hybrid governance mechanisms have grown more ineffective and inefficient due to—again—information asymmetry, and rule of law gaps. A stronger approach that is premised upon transparency and traceability in the GSC is urgently needed.
To fill these gaps, the recent emergence of distributed ledger technologies (commonly referred to as blockchain) may offer a promising disintermediation step toward a “technological fix” to GSCs’ human rights challenges. To assess such a possibility from both a theoretical and a practical perspective, we first examine in Section II the characteristics, benefits, and cross-border spillover effects of GSCs, as well as human rights violations by multinational corporations and their power and responsibilities. Section III illuminates the ineffectiveness of existing governance models and regulatory measures, at both the international and national levels, and identifies information asymmetry and rule of law gaps as fundamental flaws. This finding leads us to examine the extent to which blockchain can serve as a governance tool along GSCs. Section IV discusses how the key features of blockchain—transparency, traceability, data consistency and security, authenticity, and completeness—can alleviate problems of information asymmetry, rule of law gaps, and corporate compliance along GSCs, further helping to ameliorate transnational human rights issues. Nevertheless, while “blockchainizing” GSCs seems to have the potential to overcome challenges of public and private governance, some normative and technical limits and risks remain to be addressed, such as adequate infrastructural support, scalability, cybersecurity, and the “garbage in, garbage out” conundrum
Constitutionalism Today: The Prospects of the European Constituional Community
Get PDFIn the late 1940s a consensus emerged: a post-World War II, post-colonial, post-authoritarian, grand consensus in Europe and beyond. Dignity, liberty, and equality should not merely be promises on paper or an elitist privilege for the few, and representative democracy should be the way to run societies. This consensus certainly gave birth to a variety of legal regimes, but it also defined a baseline for the political systems we call constitutional democracies: first, power should be distributed to parliament and representative government via fair elections that ensure equal voting rights and a realistic option of a peaceful change of government and, second, power should be limited by fundamental human rights and by legally enforceable commitments to checks and balances, ie, with separated powers or in a version of federalism. As such, legality is not just a form or a fetish but a substantive notion, and democracy is based on the substantive rule of law. In a constitutional democracy, the law is then conditio sine qua non to live together, a safeguard of deliberation, and a foundation of trust. We call this constitutionalism
Collusive Prosecution
No full textIn this Article, we argue that increasingly harsh collateral consequences have surfaced an underappreciated and undertheorized dynamic of criminal plea bargaining. Collateral consequences that mostly or entirely benefit third parties (such as other communities or other states) create an interest asymmetry that prosecutors and defendants can exploit in plea negotiations. In particular, if a prosecutor and a defendant can control the offense of conviction (often through what some term a “fictional plea”), they can work together to evade otherwise applicable collateral consequences, such as deportation or sex-offender registration and notification. Both parties arguably benefit: Prosecutors can leverage collateral consequences to extract greater punishments and defendants can avoid consequences they view as particularly burdensome. But these benefits can come at a cost to others who are not at the bargaining table. We contend that “collusive prosecution” of this sort can be pernicious, as may be the case when sex-offender registration and notification laws are in play, but it also has potential to be socially attractive. Accordingly, we sketch a normative framework for evaluating collusive prosecution as a matter of prosecutorial ethics. We draw on the emerging field of public fiduciary theory to characterize prosecutors’ ethical duties to varied—and often conflicting—beneficiaries. We suggest that programmatic uses of collusive prosecution may be fair and reasonable in a common immigration context, but collusive prosecution designed to relocate sex-offense registrants likely fail these conditions. Ultimately, we offer a suite of reforms that may be useful for policing collusive prosecution without banning the practice outright
Constitutional Review of Federal Tax Legislation
No full textWhat does the Constitution mean when it says that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States” (U.S. Const. Article I, Section 8, Clause 1)?
The definition of “tax” for constitutional purposes has become important considering the Supreme Court’s 2012 decision in National Federation of Independent Business v. Sebelius (“NFIB”), in which Chief Justice Roberts for the Court upheld the constitutionality of the individual mandate of the Patient Protection and Affordable Care Act (“ACA”) under the taxing power. This holding has resulted in commentators questioning the utility of Roberts’s distinction between a “tax,” where Congress’s power is nearly unlimited, and a “regulation,” where Congress’s power under the Commerce Clause is limited.
We would propose a different distinction. A “tax” for purposes of the Taxing Clause is a pure tax: a tax implemented “to pay the Debts and provide for the common Defence and general Welfare of the United States.” Accordingly, a pure tax is intended primarily for raising revenue to finance the elected government’s policy and its implementation.
Even a pure tax has constitutional limits; however, they are relatively few. The traditional bases for constitutional judicial review, such as discrimination based on gender, race, or sexual orientation, are applied to tax legislation in a very limited way. The Supreme Court has shown significant reluctance to review tax legislation in the U.S. on constitutional grounds. Nevertheless, one could argue that a tax provision that has a disparate impact on race, gender, or another protected category should be evaluated using strict scrutiny, as some provisions involving gender have been by lower courts. Other provisions should be reviewed on a rational basis ground, although we believe some of them should be struck down even on that basis.
Pure taxes should be distinguished from regulatory taxes whose main purpose is not to raise revenue but are intended—in accordance with the rules of the free market—to impose the right economic price on those who financially benefit from the damages they cause to the whole community. Regulatory taxes include Pigouvian taxes, such as tobacco taxes and carbon taxes, which are designed to reduce negative externalities, and tax expenditures, which are negative Pigouvian taxes. They are designed to recognize the positive externalities that a particular behavior of a taxpayer that benefits the whole community. Therefore, all members of the community must compensate the taxpayer who created the positive externalities by paying the economic cost of the received benefit—through taxes higher than the taxes paid by the person who created the externalities. Regulatory tax legislation should be subject to constitutional review under various clauses of the Constitution, including the Due Process Clause, the Equal Protection Clause, the Establishment Clause, and the limits of the Commerce Clause.
As discussed below, the “penalty” imposed by the individual mandate of the ACA, which was repealed in 2017, was a regulatory tax, not a pure tax, and therefore was subject to the limits on congressional power under the Commerce Clause, contrary to Chief Justice Roberts’s view. In our opinion, the individual mandate should have been upheld as consistent with these limits, per Justice Ginsburg’s dissenting opinion
Including Minority Parties in Policymaking: A Legislative Requirement To Address Member Interests
Get PDFLegislatures face a tension between legislative effectiveness and the inclusion of minority parties in policymaking. On one hand, providing minority party members with a meaningful role in the development of legislation may decrease the efficiency of the policymaking process, decrease the extent to which legislation meets the interests of majority party members, and increase the likelihood of gridlock if minority parties have the power to block legislation. On the other hand, excluding minority party members from the policymaking process may leave a significant portion of the public with no meaningful representation in the development of major legislation. This effective lack of representation is problematic for two reasons. First, legislation may fail to address interests held by minority party members and their constituents. Second, a lack of meaningful representation undermines representative democracy and democratic legitimacy