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How Do You Value a Victim? Victim Impact Statements in Military Sexual Assault Trials
Full text linkThis Article examines a timely and important issue — the use of Victim Impact Statements (VIS) in criminal trials and, more specifically, in military courts-martial. The right for victims of offenses to provide VIS has existed in the United States for approximately three decades. However, the military’s implementation of similar rights for victims has languished, with the advent of the right for a victim to provide a VIS having been implemented only within the last decade. Relying on legal precedent in the form of appellate case decisions and qualitative assessments of trial court records, this article explores the current state of the law regarding the substance of VIS to then juxtapose that with trial court records for cases where the substance of the VIS was not considered on appeal. To date, no publication has qualitatively assessed the substance of VIS provided in military courts-martial. The results of this study provide ample support for the conclusion that follow-on research is necessary in order to inform decision-making related to victim rights in the military. Additionally, the Article recommends proposed solutions to the current state of the law and practice and should further inform the debate surrounding whether VIS, from a policy perspective, should be included at the sentencing phase of trials
Reframing the Question: Why \u3cem\u3eChevron\u3c/em\u3e - and Not a One-Size-Fits-All Interpretation of “Substantially the Same” - Should Guide a Court’s Interpretation of the Congressional Review Act’s Limitations on Future Rulemaking
Full text linkThe Congressional Review Act (the CRA) is a Congressional oversight tool used to overturn rules issued by federal agencies. Beyond the immediate effect of blocking an undesirable agency rule, the CRA bars an agency from issuing another rule in “substantially the same form” as the disapproved rule. But the scope of this provision’s future effect on agency rulemaking remains unclear: the statute is silent as to what criteria should be considered in evaluating whether or when a subsequent rule falls into the “substantially the same” category, and the provision has gone untested in court. Rather than proposing a uniform interpretation of “substantially the same,” this Article proposes that courts adopt a case-by-case approach to allegations that an agency is barred from enacting a particular rule due to a prior CRA resolution. Specifically, the Article argues that courts should apply Chevron and, where appropriate, defer to an agency’s conclusion that a rule is not substantially the same as a rule blocked by an earlier CRA resolution. In reaching this conclusion, the Article contends a CRA resolution effectively amends an agency’s organic statute, thereby permitting courts to apply Chevron to an agency’s determination of whether a rule does or does not fall within the CRA’s prohibitive scope
On-Campus or Off-Campus? - That Is \u3cem\u3eStill\u3c/em\u3e the Question: \u3cem\u3eMahanoy Area Sch. Dist. v. B.L.\u3c/em\u3e and the Supreme Court’s New Digital Frontier
Full text linkThis Article examines the contours of the “on-campus” versus “off-campus” distinction embedded in the Supreme Court’s opinion in Mahoney School District v. B.L. This Article argues that B.L., and the Court’s broader Tinker doctrine, fail to adequately address modern student speech issues, especially student speech arising in extracurricular programs and activities. This Article proposes a two-part legal framework for future courts to analyze student speech issues in an increasingly digital post-pandemic world
A Ripple-Turned-Tidal Wave: \u3cem\u3eSEC v. Ripple Labs\u3c/em\u3e as an Inflection Point in the Regulatory Approach to Innovation in Complex Systems
Full text linkThis Comment makes both an observation and an argument about the SEC v. Ripple Labs, Inc. litigation. First, this Comment observes that the facts of the case constitute a challenge to the lack of clarity surrounding the current regulatory regime governing blockchains and initial coin offerings (ICOs). Second, this Comment argues that the Ripple case provides regulators an opportunity to, if they choose, use complexity theory to address technological innovation—such as blockchain—as an emergent phenomenon in a complex system rather than as a binary policy choice to be either encouraged or discouraged.
Ripple, the U.S. company behind one of the world’s largest crypto assets by capitalization, deployed a blockchain network designed to remove the traditional friction points of intermediation and settlement from money transfer systems. To obtain widespread adoption of its crypto asset, XRP, both Ripple and its executives sold XRP to speculators and professional investors, but more than five years later—and following a rash of enforcement actions against other blockchain companies—the U.S. Security and Exchange Commission (SEC) brought Ripple and its executives into federal court for allegedly violating U.S. securities laws. The lawsuit is unique because it was not only brought against the company and personnel behind one of the most successful iterations of a novel technology, but effectively, it was brought against a widely held cryptocurrency at a time when pandemic- driven economic and social pressure and billions of dollars in main-street investment in new blockchain technologies was occurring in the wider U.S. economy.
But as important as the result of the case is, this Comment suggests that the long view of the case’s impact should be understood through the lens of complexity theory: regulators should, in cases of innovative technology, use this discipline to see the case as both an emergent phenomenon and a point in the trajectory of the larger U.S. economy where innovation and consumer protection are not binary, opposed considerations. To flesh this out, this Comment offers a broad, high-level overview informed by complexity science of the basic operation and recent history of blockchain technology and ICOs as well as the economic forces at work in the U.S. and an explanation of Ripple’s use case. This Comment then will turn to the regulatory history between the SEC and Ripple and analyze the merits of the investment contract approach necessary for SEC jurisdiction. Understanding the history, the parties, and the litigation as parts of a complex system, this Comment concludes by listing several expert suggestions regarding blockchain technologies consistent with obtaining short term stability that the court can take up in dealing with the facts of the case in the light of existing precedent
Redefining “Misinformation,” “Disinformation,” and “Fake News”: Using Social Science Research to Form an Interdisciplinary Model of Online Limited Forums on Social Media Platforms
Full text link“Misinformation,” “disinformation,” and “fake news” have spread division and contention through online social media platforms, resulting in adverse effects to various areas of science, politics, and public health. This Comment takes a deeper look into the underlying motivations and beliefs behind this phenomenon by presenting a cohesive summarization of the empirical evidence gained from social science research. These terms are reclassified as “conflicting information” to deemphasize the considerations of fact or fiction and emphasize the empirical data showing these terms are social signifiers connotating “in-group” and “out-group” divisions. After developing this backdrop of social science research, the current legal proposals for regulating “conflicting information” are scrutinized, including section 230 of the Communications Decency Act, antitrust enforcement, classification of internet service providers as public utilities, and First Amendment limitations of regulating algorithmic data. This Comment then combines the empirical evidence and legal theory to form an interdisciplinary model of online limited forums. After developing a rudimentary view of how online limited forums would operate, it is proposed that a legislative recommendation be embedded into section 230’s “good faith” requirement. This legislative recommendation gives much needed guidance to online platforms trying to navigate the spread of conflicting information, while also bypassing the legal limitations making stricter methods of enforcement untenable
Influenced or Influencer? OIRA\u27s 12,866 Meetings in Review
Full text linkDespite attempts to improve the transparency of its operations, the Office of Information and Regulatory Affairs (“OIRA”) has often been maligned as a “black box” subject to improper influence by outside groups, particularly industry. Contributing to this perspective are “12,866 Meetings”: meetings between OIRA, outside parties, and some-times agencies that are governed by disclosure requirements in Executive Order 12,866, as well as strong norms within OIRA. Through an examination of empirical studies and theoretical mechanisms of influence, this Article provides a comprehensive assessment of 12,866 Meetings and their role in the regulatory development process. I argue that there is little evidence to support the view that OIRA is improperly influenced and an equivalent, if not greater volume of evidence supports the view that 12,866 Meetings have a beneficial effect on the rulemaking process. I then situate OIRA’s process within the Administrative Procedure Act’s legal standards for ex parte communications—off-the-record communications between agencies and parties to agency proceedings. Not only does OIRA’s process exceed the relatively minimal statutorily- and judicially-imposed standards, but OIRA’s level of transparency is nearly unmatched by any agency across the federal government. If OIRA is a black box, the agencies are a patchwork of even-blacker boxes. To bring more transparency to the rulemaking process, the Biden Administration should issue an executive order allowing OIRA to become an influencer by requiring federal agencies to match OIRA’s strong disclosure standards for ex parte com-munications
How Hard Is Soft EU Company Law?
Full text linkThis article analyzes the soft law applicable to companies within the European Union (EU) in order to extract tendencies, including by comparing US and EU soft law instruments. It concludes that soft law is like wine: many enjoy it, and it gets better as it ages. Soft law is a very popular and successful girl nowadays, for legitimate reasons, but one that brings about a series of concerns as well. After an overview of the main soft law instruments related to corporate governance and financial markets, and their sources, this article extracts a number of trends