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Fighting Against Black Money by Offering Amnesty for Economic Development in Bangladesh: A Stigma Can Never Be a Beauty Spot
Get PDFBlack money is a global concern. However, black money has disproportionately affected Bangladesh. To combat the proliferation of black money in the country, successive governments of Bangladesh have offered amnesties to black money holders (BMHs) in contravention of the national Constitution, legislation, and international conventions. Nonetheless, responses to such incentives have been notably poor, mainly because the wrongdoers do not fear the superficial threat of law enforcement. This article examines the BMHs’ responses to amnesties so far and explains the substantial harm caused by such discriminatory favors, including increases in corruption, the price of real estate, money laundering, deposits by Bangladeshis in Swiss banks, defaulted bank loans, and capital flights. To address these problems, this article makes several recommendations, including discontinuing amnesties, placing checks and controls on corruption, strengthening watchdog and law enforcement agencies, incentivizing whistle-blowers and the establishment of the Ombudsman’s office, and establishing a new statutory body for the assessment of the performance of financial regulators. In addition, this article argues that effective measurements need to be undertaken to increase global cooperation, enhance public awareness, and stimulate social movement. These recommendations aim to improve the regulatory regime in Bangladesh in preventing black money, and they may also be suitable for other countries facing similar issues
Special Matters: Filtering Privileged Materials in Federal Prosecutions
Get PDFThis Article reviews the U.S. Department of Justice\u27s toolbox for handling potentially privileged materials, with close attention to the evolution from filter teams to the Special Matters Unit in fraud prosecutions. Significant case opinions from the U.S. Courts of Appeals for the Fourth, Sixth, and Eleventh Circuits reveal the judiciary\u27s diverse views on filter teams. The recent case of United States v. Esformes in the U.S. District Court for the Southern District of Florida, now on appeal to the Eleventh Circuit, illustrates how a filter team can fall short and draw unflattering attention to the Department of Justice. In the wake of Esformes and other filter team criticisms, the Department introduced the Special Matters Unit to usher in a new, improved, and centralized team. Underlying all these privilege strategies is a view of criminal justice as quasi-adversarial. The special role for prosecutors to seek justice rather than convictions implies that a criminal prosecution is not purely competitive. This quasi-adversarial view is the invisible side to privilege, justifying and animating the Department of Justice\u27s privilege strategie
Trump’s Insurrection: Pandemic Violence, Presidential Incitement and the Republican Guarantee
Get PDFOur own experience has corroborated the lessons taught by the examples of other nations; . . . that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government), has no place but in the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction. Should such emergencies at any time happen under the national government, there could be no remedy but force. Hamilton, Federalist Paper 28. Hegel says somewhere that great historic facts and personages recur twice. He forgot to add: “Once as tragedy, and again as farce.” Marx, The Eighteenth Brumaire of Louis Bonaparte
Trade Administration
Get PDFAt the core of public debates about trade policy making in the United States and the so-called trade war is a controversy over who should be responsible for making U.S. trade law: Congress or the President. What these important conversations miss is that underlying much of our trade policy in recent decades is a widespread executive-branch lawmaking apparatus with monitoring, rulemaking, adjudicative, and enforcement features that operates in considerable shadow. Executive branch agencies are now the primary actors in trade lawmaking. This Article excavates that critical underbelly: what I call our trade administrative state. It maps the trade administrative state\u27s statutory and institutional ascent, which I maintain was the product of considerable experimentation in governance schemes developed in response to diverging market trends and normative priorities, the absence of judicial mechanisms to monitor its borders, and a deficiency of administrative law disciplines to respond to its fortification.
This unearthing reveals that the trade administrative state does not operate like the rest of the regulatory state either inform or in process, despite that its actors engage in several conventional regulatory functions. Rather, trade lawmaking is predominantly managed by a single agency, the Office of the United States Trade Representative, and, procedurally, it lacks the hallmarks traditionally associated with administrative law. The Article then evaluates this model in light of administrative law\u27s aspirations. It demonstrates how our present model of trade administration and its self-policing control mechanisms clash with commonly held scholarly and doctrinal understandings of executive governance.
This assessment of modern trade governance also prescribes certain lessons for how administrative law operates when it comes to certain specialized areas of administration. Surprisingly, despite the fact that trade administration challenges established positivist and process-oriented values, it does so in such a way that may enhance compliance with international law. At a moment when critics raise concern about the President\u27s disfavor of international trade law and institutions, this study reveals that certain norms may be entrenched in our trade administrative state to counteract those concerns.
Taken together, the Article makes three contributions: First, it identifies and illustrates the experimental history of trade administration. Second, I unpack the distinct features of trade lawmaking as managed by executive branch agencies and draw conclusions about its functions for the way we conceive of trade actors and trade action in our constitutional framework. Finally, the Article analyzes the implications of this revealed structure for administrative law both in process and in content and shows how trade law serves as an unexpected administrative constraint
Deportation as a Death Sentence: Equal Protection Violations in the Trump Administration\u27s Termination of Medical Deferred Action
Get PDFPrivacy Before Trade: Assessing the WTO-Consistency of Privacy-Based Cross-Border Data Flow Restrictions
Get PDFThe first decades of the 21st century have been characterized by the growth of digital trade fueled by new business models based on cross-border data flows. With data taking a central role in the digital economy, governments and their constituents have become increasingly concerned about the commercial handling and commoditization of personal data. Consequently, governments have entered the business of regulating cross-border data flows, especially with the aim of protecting the privacy of their citizens. This regulatory trend does not occur in a vacuum: The World Trade Organization (WTO) through the General Agreement on Trade in Services (GATS) regulates the types of measures and treatment that governments may adopt regarding foreign providers of digital services. Further, several Free Trade Agreements (FTAs) include electronic commerce or digital trade chapters establishing obligations regarding cross-border data flows. This paper focuses on cross-border data flow restrictions aimed at protecting privacy and the assessment of their WTO-consistency. This perspective covers a broader range of measures and offers a more comprehensive understanding of privacy regulations before trade fora than the existing literature does. In particular, this paper draws attention to the assessment of privacy-based restrictions under the GATS exceptions and argues that the necessity test and chapeau requirements will prove critical in any future adjudication over complaints against a country’s policies restricting cross-border data transfers. This analysis highlights that the linkage between trade and privacy will continue to intensify and that this linkage will be further shaped by countries being taken to court
Rock the Cash-bah! How \u3cem\u3eAlston\u3c/em\u3e Presents a New Challenge to the Amateurism Justification and Ways the NCAA Can Modernize to Remain Afloat
Get PDFDuring the last decade, antitrust litigation involving Division I athletes and the NCAA has resulted in changes to the NCAA’s rules, presenting a threat to amateurism. As athletes have voiced concerns about their likeness being used without permission in video games, the difficulty of balancing sports and academics, and going to bed hungry when millions of dollars in profits are being made off of them, the NCAA has allowed conferences and schools to provide student-athletes with stipends for cost of attendance expenses. However, even though the NCAA has modified its rules, athletes continue to ask for more, and courts have responded. Recent litigation has resulted in the expansion of athletes’ rights. In March 2019, U.S. District Judge Claudia Wilken declared that the NCAA and its major conferences are violating antitrust law by restricting the education related benefits athletes can receive. In May 2020, the United States Court of Appeals for the Ninth Circuit upheld Judge Wilken’s decision that the NCAA cannot limit the non-cash education-related benefits available to athletes in Division I of the Football Bowl Subdivision (FBS).
This Comment will discuss how antitrust litigation has impacted amateurism. Parts III and IV will detail the Ninth Circuit’s decision in Alston, examine ways the NCAA can modernize to limit athlete exploitation, and discuss how the NCAA and student-athletes can benefit from these solutions
Bad Law or Just Bad Timing?: Post-pandemic Implications of Managed Care Advisory Group, LLC v. CIGNA Healthcare, Inc.’s Ban on the Use of Virtual Technology for Taking Non-party Evidence Under Section 7 of the Federal Arbitration Act
Get PDFThe COVID-19 pandemic has had an enormous socio-economic impact globally. To continue operations, the legal field, like other sectors, has had to adapt to the exigencies of the pandemic by, inter alia, becoming increasingly reliant on remote technologies to conduct business. Yet, only a few months before COVID-19 was declared a pandemic, the Eleventh Circuit ruled in Managed Care Advisory Group, LLC v. CIGNA Healthcare, Inc., 939 F.3d 1145 (11th Cir. 2019), that Section 7 of the Federal Arbitration Act (the “FAA”), 9 U.S.C. § 7, prohibits prehearing discovery and does not allow a summonsed witness to appear in locations outside the physical presence of the arbitrator and, thus, an arbitral summons for a witness to appear via video conference is not enforceable. Intellectually, Managed Care raises interesting issues concerning the textualist approach to statutory construction. For practical purposes, the opinion stands at odds with the realities of arbitration in the modern world, where remote technology has played a key role in the efficient administration of arbitration proceedings. Further, in light of the pandemic and its related health risks, the Eleventh Circuit’s opinion raises concerns about the conduct of arbitration proceedings, particularly when disclosure of information by non-parties is needed for a full and fair hearing. After examining the text of Section 7 and federal circuit courts’ opinions interpreting the provision, this Article proposes an alternate, perhaps timelier, textual interpretation of Section 7—one that remains true to the text, comports with the practicalities of modern arbitration, and anticipates challenges that will continue or arise in a post-pandemic world