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Regulatory Frameworks for Smart Mobility: Current U.S. Regulation of Connected and Automated Vehicles And The Road Ahead
Get PDFOn June 7, 2023, Senator Gary Peters from Michigan gave an interview about autonomous vehicle technology where he stated that: “From a competitive standpoint, there’s no question that it is absolutely essential that this technology get developed here and deployed here in the United States. We’re facing significant international competition from other countries that understand that autonomy represents not only the future of mobility, but it drives other technologies in a significant way.” Just last year, Senator Peters and eleven of his colleagues had also written a letter to Secretary of Transportation Pete Buttigieg that: “The federal government has the opportunity and responsibility to foster a domestic autonomous vehicle industry that is as safe as it is innovative, and that provides high-quality jobs across the economy, including in transportation. The underlying question, however, is what sort of regulatory framework will allow the industry to flourish.
With increased innovation in and adoption of connected and automated vehicle (CAV) technologies, the U.S. federal government and state governments across the country are grappling with how to responsibly regulate these new technologies. Questions about CAV regulation ranging from uncertainty about how to allocate regulatory authority between federal and state governments (and between regulatory agencies) to debates over which specific safety standards should apply loom for automakers, insurers, technology companies, and other industry actors. States have taken the initiative in crafting their own CAV frameworks, creating a patchwork of requirements for an industry that would benefit from a uniform regulatory framework given the inherently mobile nature of CAVs. This paper surveys current federal and state legislative and regulatory frameworks aimed at advancing the deployment of CAVs to give an overview of the current state of regulatory frameworks and where they may be headed
The Gloss of War: Revisiting the Korean War’s Legacy
Get PDFIn war powers analysis, reliance on the interpretive method of historical practice, also called the “gloss of history,” has made history a technology of the forever war. This approach draws upon the history of U.S. military conflict to interpret the scope of presidential war power and embeds past actions into the separation of powers. There is a crucial flaw in this methodology, however. The understanding of history in historical gloss is not informed by the changing historiography of war. This has led to a divergence between the “history” in legal authority and the revised historical understanding in scholarly works of history. Whereas lessons of history in other contexts often serve as levers for reexamination of government action, in gloss-of-history analysis the past instead serves to legitimate settled practices. The consequence is that presidential overreach is not recognized and corrected, but instead built into the doctrine of expanding unilateral power.
This Article is the first to examine how static ideas about history in legal analysis have aggrandized presidential war power. It analyzes the most important example of this: President Harry S. Truman’s unilateral actions in the Korean War and subsequent reliance on his example in executive branch legal opinions. The war is a principal precedent supporting the idea that presidents may use substantial military force without congressional authorization. This has legitimated unilateralism in less massive wars, and since that time all U.S. uses of military force have been in conflicts smaller than Korea, with the exception of the war in Vietnam. Decades of historical scholarship, however, have shown that Truman misunderstood the nature of the conflict and disregarded Congress’s role, and that his advisors failed to seriously consider Congress’s war authorization power until after force was deployed. Historians have also shown the devastating costs of war for Koreans, whose experience is not centered in the U.S. war powers literature. Historical revision did not prompt legal reconsideration, however. Instead, the Korean War is calcified as a significant precedent supporting executive unilateralism, undermining democratic limits, and enabling ongoing war. The Article argues that gloss of history analysis must be dynamic, attentive to the way understandings of the past change over time. An approach to gloss informed by historical revision could reassert history’s role as a critical perspective on law
Deinstitutionalization, Disease, and the HCBS Crisis
Get PDFPrimarily funded by Medicaid, home- and community-based services (HCBS) allow disabled people and seniors to receive vital health and personal services in their own homes and communities rather than in institutions like nursing homes and other congregant care facilities. The HCBS system is facing a growing crisis of care nationwide; more than 600,000 people are waitlisted for services, thousands of direct care workers are leaving the industry, and states are not committed to deinstitutionalization. The COVID-19 pandemic has highlighted and exacerbated these problems, as people in institutional settings face infection and death at far higher rates than those housed outside them.
This Note offers solutions to the HCBS crisis. In particular, it explores two strategies that could help expand access to HCBS, regardless of whether the federal government increases its funding: (1) expanding and creatively using Olmstead, a landmark disability rights case, to force states to deinstitutionalize; and (2) adding a new title to the Americans with Disabilities Act focused on emergency relief. Together, these two solutions would help get people out of institutions while creating a more resilient healthcare infrastructure for future emergencies
Regulating Greenhouse Gas Emissions Under the Endangered Species Act
Get PDFDespite the devastating impact climate change will have on biodiversity, most legal scholars and policymakers are skeptical that the flagship statute for protecting biodiversity in the United States, the Endangered Species Act (ESA), should be deployed to regulate greenhouse gas emissions. This skepticism has been driven by the concern that using the ESA to regulate greenhouse gases could lead to administrative issues, legal chaos, and political backlash that might endanger the Act overall.
In this article, I draw on three different elements to argue that the ESA could plausibly be used to regulate greenhouse gases. Specifically, I draw on recent scientific developments that help attribute impacts on biodiversity to climate change; on a common tool in environmental regulation, the general permit; and on key elements of tort law that allow for the division of liability among various actors. Together, these elements mark out a pathway by which the ESA can be used to regulate greenhouse gas emissions, and potentially produce significant funds to pay for the protection of at least some species that are threatened by climate change.
I propose developing a general permit system under the ESA that would regulate large sources of greenhouse gas emissions. This system would charge a fee per unit of greenhouse gases emitted that would compensate for the proportional harm that each unit of emissions causes to species threatened by climate change. In turn, those funds can be used to facilitate conservation efforts for species that are protected under the ESA and threatened by climate change. I provide a thorough examination of how such a system would be consistent with the ESA and the implementing regulations and agency guidance documents, how it would work in practice for individual species or emitters, and how likely such a program would be to withstand judicial review.
The proposal has implications beyond the ESA. It helps identify the ways in which creative regulatory approaches, such as general permits, can facilitate the adaptation of existing environmental laws, like the ESA, to the current-day context of climate change. Given the increasing impacts of climate change and the difficulties of enacting substantial revisions to environmental laws at the federal level, such creativity will be essential for a range of policy areas
The First US Tax Treaty and Its Influence
Get PDFIn 1945, the US negotiated a tax treaty with the UK.1 This treaty was based on the London model, which was the last contribution of the League of Nations to international tax. Since it was a treaty between the two most important economies in the world, it precipitated the post-war rise in tax treaty negotiations. It also was similar to the first OECD model of 1963. In general, with a few exceptions (citizenship-based taxation, residence of corporations, limitation on benefits) the US models of 1981, 1996, 2006 and 2016 closely resemble the OECD model. This is not surprising given the close US involvement in OECD from its inception
Committee Prosecution: Using Expert Opinion to Make Criminal Justice Descisions More Impactful
Get PDFThose uninitiated to the reality of the United States’ criminal justice framework may believe that judges are the most powerful actors in the system. These casual observers watch crime shows filled with trials where judges make rulings and yell at people who are out of line. Viewers may believe in the adversarial system as a war between zealous prosecutors seeking justice and defense attorneys fighting for their client’s innocence. They may think of judges as neutral arbiter who makes the ultimate decisions. Unfortunately, that is not the case.
Alternatively, casual observers may think that the jury is the most powerful actor in the criminal justice system. This is certainly an aspiration of those who believe in the system as a tool for a community to control its own behavior. If the system is meant to be run by the people, then getting a group of people together to determine guilt or innocence is certainly one way of giving regular people the power. And there is no doubt that juries play central roles in the trials where they are called. However, juries are almost never called, and judges are not determining the outcome of most cases. Instead, the system is designed so that all parties are motivated to settle a case with a plea deal instead of going to trial.
Because of this, prosecutors are the most powerful actors in the criminal justice system. Prosecutors make the charging decisions and often hold all the cards during the negotiations. Defense attorneys are left to choose between potentially harsh sentencing at trial and cutting a deal with the other party–forced to pick an inconvenienced judge or an unyielding prosecutor.
This article proposes a different method – a way in which negotiation is conducted, not between two lawyers in the hallways of a courthouse, but between a defendant and a board of experts. In tandem, prosecutors’ offices should be organized where they consider input from experts such as criminologists, social workers, and mental health professionals to make decisions that actually help people and prevent crime. This is not an argument for or against any specific sentencing philosophy, but a proposal that the experts on sentencing and recidivism need to be in the room where sentencing decisions are made
An Intelligent Path for Improving Diversity at Law Firms (Un)Artificially
Get PDFMost law firms are struggling when it comes to diversity and inclusion. There are fewer women in law firms compared to men. The majority of lawyers—81%—are White, despite White people making up only about 65% of the law school population. Lawyers of color remain underrepresented with the historic high being only 28.32%. By comparison, 13.4% of the United States population is Black and 5.9% is Asian. The biases that perpetuate this lack of diversity in law firms begin during the hiring process and extend to associate retainment. For example, an applicant’s resume reveals a lot, including the prestige of the law school they attend (which can create inferences about their socioeconomic status); their class status, depending on extracurricular activities (i.e., playing polo v. interning with a dentist); or their gender, based on their name or other details. Continuing to depend on these biases is detrimental to law firms for various reasons. They lead to the same demographics of hired candidates, to the exclusion of other diverse candidates. Clients also have been demanding their outside counsel to be diverse, or risk losing their business.
This paper recommends law firms seeking to address diversity and inclusion issues adopt artificial intelligence (“AI”) in the hiring and retention of lawyers. AI is a term that refers to computers that accomplish tasks that would ordinarily require human intelligence. While AI is being used in other legal tasks successfully to automate routine work and cut costs, there is an added benefit to using AI in hiring and recruiting: firms can remove human biases. This Note begins by first identifying the current lack of diversity in law firms and discussing how bias is a major contributing factor. Second, it will explain how clients are influencing outside counsel to have an increasingly diverse workforce. It will then propose AI as a beneficial solution that can help firms increase diversity and inclusion in both the hiring processes and retention efforts of attorneys while mitigating human biases. Specifically, this paper will discuss the advantages of AI as applied to resume screening, structured interviewing, fair performance management, and equal compensation systems. Finally, it will outline challenges to using AI and how firms can overcome them to use AI fairly and efficiently
After Pillar One
Get PDFPillar One is unlikely to succeed for three reasons. First, it requires an MTC to be implemented because Amount A requires overriding Articles 5 (Permanent Establishment, PE), 7 (Business Profits) and 9 (Associated Enterprises) of every tax treaty to abolish the PE and Arm’s Length Principle (ALP) limits enshrined therein. But negotiating an MTC is hard, especially when over 100 countries are involved and there are fundamental disagreements among them.
Second, because Pillar One (despite its October 2021 expansion) is still aimed primarily at taxing the US digital giants (Big Tech), it is hard to envisage it being implemented without the United States. But despite the support of the Biden administration, since the Republicans are adamantly opposed, an MTC implementing Pillar One cannot be ratified by the Senate (which requires 67 votes) or enacted as a Congressional Executive Agreement (which requires passage in the Republican controlled House). In theory other countries can adopt a Pillar One MTC without the US, but as discussed below that could lead to massive double taxation and a trade war, so that seems implausible.
Third, Pillar One is premised on all the countries that have adopted DSTs repealing them. But DSTs are popular politically and, in some cases (e.g. the UK), brought in significant revenue. The only reason countries agreed to suspend DSTs was US pressure, and now that the US cannot ratify an MTC, there is no reason for those countries not to implement their DSTs as scheduled in January 2024.
What will happen then? This article discusses what options countries have to tax Big Tech without Pillar One, and then addresses the US response
