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The Internet, Personal Jurisdiction, and DAOs
Get PDFGlobal connectivity is at an all-time high, and sovereign state law has not fully caught up with the technological innovations enabling that connectivity. TCP/IP—the communications protocol allowing computers on different networks to speak with each other—wasn’t adopted by ARPANET and the Defense Data Network until January 1983. That’s only forty years ago. And the World Wide Web wasn’t released to the general public until August 1991, less than thirty-five years ago. The first Bitcoin block was mined on January 3, 2009, less than fifteen years ago.
Legal doctrine doesn’t develop that fast, especially in legal systems heavily based around judicial precedent like the United States. The disconnect between the global, instant connectivity that internet-based technology makes possible and traditional legal and State regulatory actors has never been more apparent. In the past year, the United States, through its administrative agencies controlled by the Executive branch, has brought numerous enforcement actions against Web3 and crypto projects. Some of these projects and their members have been based in the United States, and others have, at best, limited connections to the United States’s territorial borders.
This Essay calls attention to the way the Internet, and Web3 in particular, has raised constitutional concerns about how United States agencies approach personal jurisdiction. Understanding these constitutional limits is critical for anyone considering forming or participating in a Decentralized Autonomous Organization (“DAO”). Intentional, thoughtful consideration of the issues presented here will ensure that DAOs and their members take on legal obligations in the United States knowingly and responsibly. A corollary is also true: DAOs and their members should fully consider their possible defenses and rights when confronted with the next overreaching enforcement action
Women in Shareholder Activism
Get PDFEven a cursory review of the history of American environmental, social, and corporate governance (ESG) shareholder activism reveals the presence of women leaders. This Article sketches some of this history and interrogates the role of women in the shareholder activism movement. That movement typically has involved claims by minority shareholders to corporate power; activists are nearly always on the margins of power, though minority shareholders may, collectively, represent a majority interest. This Article ascribes women’s leadership in shareholder activism to their longstanding position as outsiders to corporate organization. Women’s participation in shaping corporate policy—even from the margins—has provided women with unique opportunities for leadership and challenged stereotypes about the role of women in public life, while also challenging and reforming business practices and policies.
Much of this Article sketches the history of American women in shareholder activism, beginning in the 1890s with Ellen M. Henrotin, perhaps the first person to recognize the potential for collective action among women shareholders. This Article describes the ESG activism of Louise de Koven Bown, another Chicago socialite, and explores the rise of women activists after World War II, led by Wilma Soss, who pursued a mix of social and governance reforms and even achieved some fame in popular culture. Unlike their male counterparts, such as Lewis Gilbert, women activists were savaged by the press. This Article describes the role of women shareholder activists after the emergence of institutional investing, from the Sisters of the Precious Blood, a group of nuns who waged a shareholder activism campaign against the manufacturers of infant formula, to the Corporate Social Responsibility movement of the 1960s and 1970s and the leadership of such women as Alice Tepper Marlin, Joan Bavaria, Amy Domini, and Nell Minow. Finally, this Article describes the experience of a twenty-first century asset manager who ran into sexism in the shareholder-manager dynamic and exposed it in the Financial Times in 2018. This Article concludes by summing up some key insights from this history
Aesthetics of Perpetration and Perpetrators in International Criminal Trials
Get PDFIn Invisible Atrocities: The Aesthetic Biases of International Criminal Justice, Randle DeFalco argues that aesthetic, rather than legal, considerations play a role in shaping our understanding of international crimes. He claims that international criminal justice is focused on atrocities that constitute the most horrific spectacles of violence—and largely ignores “aesthetically unfamiliar forms of mass harm causation – those that are slow, attritive, banal, and hence generally unspectacular in nature.” DeFalco makes a compelling case in two senses: descriptively, that we do in fact consider spectacular atrocities to be more worthy of international criminal prosecution, and also normatively, in that we shouldn’t consider these sorts of crimes to be any more worthy of prosecution than crimes that are attritive, slow, or otherwise unspectacular
Religious Ministers and the Scope of Their Rights to Non-Discrimination in Employment
Get PDFThe First Amendment is currently thought to bar ministerial employees from any recourse against their religious employer under a wide variety of non-discrimination statutes and other forms of legal protection. The typical critique of this state of affairs seeks to narrow the class of persons who count as ministerial employees. This paper focuses instead on an important, and peculiar, aspect of the ministerial exception doctrine. At present, the law generally prohibits any recovery by ministerial employees for employment discrimination by their religious employer even where the employer’s reasons for the discrimination have nothing to do with any religious doctrine, belief, article of faith, or religious practice. And it is not clear whether the religious employer can freely waive this unduly broad immunity, even for the most laudable reasons. This Article criticizes this state of the law as unjustified
Tribute to Professor Joan Shaughnessy
Get PDFA tribute to Professor Joan Shaughnessy, who served on the faculty of the Washington and Lee University School of Law from 1983 to 2022. A recognized scholar and teacher in areas of civil procedure, federal courts, evidence, family law, and poverty law, Shaun was appointed as W&L\u27s inaugural Roger D. Groot Professor of Law in 2012
Collaboration and Opportunism in Communist Czechoslovakia, in Collaboration in Authoritarian and Armed Conflict Settings (Juan Espindola & Leigh A. Payne eds., 2022)
No full textWho is the collaborator, or in whose eyes? What is the motivation to collaborate: for material gain, for ideology, for duty? When is collaboration betraying a hated enemy, and when is it something else: personal revenge or an instrumental, rational, or even coerced response to a situation, for example? Why do collaborators meet such harsh punishment and stigma when they are revealed as such? Can they ever atone or find redemption? Beyond the perception of the stakeholders involved, how harmful is collaboration? Does it exacerbate or abate violence? Is it always evil or can it sometimes be seen as mitigating wrongs? The chapters in Collaboration in Authoritarian and Armed Conflict Settings explore these thorny questions through a set of case studies, disciplinary approaches, and temporal and regional contexts. They show the range of the types of collaboration; the ubiquity of collaboration across time, countries, political systems, and political and cultural conflicts.https://scholarlycommons.law.wlu.edu/fac_books/1161/thumbnail.jp
Global Issues in the Legal Profession (3d ed., 2022)
No full textThis book is designed to facilitate the introduction of modern international, transnational, and comparative law issues into a traditional course on professional responsibility and can be used as a supplement in an otherwise domestic-only course. It can also serve as the main text for a summer-abroad, a “global lawyering” type seminar or other compressed course in comparative legal ethics and profession. The book employs a user-friendly format, logical structure, and manageable length with its chapters designed to be used in any combination or order. It also contains numerous hypotheticals to support class discussion or student presentations that can be found at the end of each section.https://scholarlycommons.law.wlu.edu/fac_books/1164/thumbnail.jp
Brief of Professor Brandon Hasbrouck as Amicus Curiae in Support of Appellant: \u3cem\u3eBell v. Streeval\u3c/em\u3e
Get PDFThe core question raised by this case is whether a federal prisoner serving an unconstitutional sentence can be foreclosed from post-conviction habeas relief by the gatekeeping provisions of § 2255. The Constitution answers that question in the negative through the Suspension Clause. “[F]reedom from unlawful restraint [i]s a fundamental precept of liberty,” and the writ of habeas corpus “a vital instrument to secure that freedom.” Boumediene, 553 U.S. at 739. The importance of the common law writ was such that the Framers specified that it could be suspended only in the most exigent circumstances. U.S. Const. art. I, § 9, cl. 2; see also Boumediene, 553 U.S. at 739, 743; Martin H. Redish & Colleen McNamara, Habeas Corpus, Due Process, and the Suspension Clause: A Study in the Foundations of American Constitutionalism, 96 Va. L. Rev. 1361, 1370–72 (2010) (citing 2 The Records of The Federal Convention of 1787, at 438 (Max Farrand ed., rev. ed. 1966)). If § 2255’s gatekeeping provisions preclude Mr. Bell’s use of the statutory habeas substitute and § 2255’s savings clause does not provide an avenue for habeas relief in this case, then the statute would violate the Suspension Clause.
As discussed below, Mr. Bell’s pursuit of post-conviction habeas relief for his unconstitutional sentence is consistent with the historic use of habeas corpus in England and the United States. Further, the availability of habeas corpus to challenge unconstitutional sentences such as Mr. Bell’s protects critical principles of separation of powers and due process set forth in the Constitution. Any statute that precluded Mr. Bell and similarly situated prisoners from pursuing habeas relief would suspend the writ of habeas corpus in violation of the Suspension Clause
Foreword: Centering Intersectionality in Human Rights Discourse
Get PDFIn the last decade, intersectionality theory has gained traction as a lens through which to analyze international human rights issues. Intersectionality theory is the notion that multiple systems of oppression intersect in peoples’ lives and are mutually constitutive, meaning that when, for example, race and gender intersect, the experience of discrimination goes beyond the formulaic addition of race discrimination and gender discrimination to produce a unique, intersectional experience of discrimination. The understanding that intersecting systems of oppression affect different groups differently is central to intersectionality theory. As such, the theory invites us to think about inter-group differences (i.e., differences between women and men) and intra-group differences (i.e., differences in the experiences of discrimination and rights violations between white women and women of color)