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Constitutional Law on Abortion in Latin America and the Caribbean: A Regional Consensus Towards an International Custom or a Peremptory Norm of Jus Cogens?
No full textThe Inter–American Court of Human Rights recently declared the existence of a jus cogens right to a healthy environment: could it lawfully reach the same conclusion regarding a right to abortion? This paper examines constitutional law and constitutional jurisprudence on abortion in Latin American and Caribbean countries to determine whether a regional consensus exists on abortion rights in the region. The paper looks at landmark abortion decisions favoring abortion rights in Colombia and Mexico, as well as broad abortion decriminalization through statutory reform in Argentina, Uruguay, Haiti and Cuba. The paper also looks at prenatal right to life protections in eight Latin American and Caribbean countries including Guatemala, Honduras, El Salvador and Dominican Republic, full abortion bans and partial decriminalization under non–punishable grounds in countries such as Ecuador and Chile. The paper concludes that no regional custom or regional consensus on abortion rights currently exists in the region, either of the kind required for a peremptory norm of jus cogens or for a rule of customary international law
The Ironically Important Role of Incidental Take Authorizations in Whale Conservation
No full textThe late 1970s and early \u2780s saw a regime shift in wildlife protection under the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA). That shift may be impeding the recovery of cetaceans (whales, dolphins, and porpoise species) in ways that are yet underexplored. As enacted, the MMPA and ESA established a conservation framework designed to reduce, to the fullest extent possible, takes of protected species. Between 1978 and 1982, a series of amendments to both statutes introduced a complex web of incidental take authorizations designed to ensure Congress\u27 initial push for wildlife conservation would not impede economic growth and development. Today, mitigation requirements implemented within incidental take authorizations form the basis for most federal regulatory efforts to alleviate threats to cetaceans. Despite their weighty role in cetacean conservation, few studies examine the National Marine Fisheries Service\u27s (NMFS) authorization of incidental takes of cetaceans. This Article-focusing on whales-examines NMFS\u27 implementation of three types of incidental take authorizations: ESA Section 7 Incidental Take Statements, MMPA Section 101(a)(5)(A) Letters of Authorization, and MMPA 101(a)(5)(D) Incidental Harassment Authorizations. We identify three drawbacks to the incidental take authorization system. First, Congress never intended take authorizations to serve as the primary tool to mitigate harms to species, yet they seem to be playing that role. The incidental take frameworks are structurally inadequate to mitigate anthropogenic harms to cetaceans to the extent necessary to facilitate species recovery. Second, increasing numbers and sizes of incidental take authorizations paired with an inadequate consideration of cumulative impacts during the authorization process may contribute to an excess of authorized takes. Third, incidental take authorizations fail to protect previously occupied and data-deficient habitats whose protection may be necessary for species recovery. Though we focus on whales, the lessons learned from this analysis have implications for a wide variety of taxa. This Article calls for a drastic reformulation of policy approaches to recovery and conservation under the MMPA and ESA. First, we suggest ideas to bring NMFS implementation of the Acts back in-line with the precautionary approach intended by Congress when the statutes were first passed. Second, we suggest a greater utilization of offsets as a means to protect data-deficient or unoccupied habitat. Finally, we stress that more proactive measures be taken outside of the confines of the ITA frameworks to protect cetaceans
Cryptocurrencies and Financial Crimes: The Role of Decentralized Cryptocurrency in Facilitating Money Laundering and the Challenges Posed on Anti–Money Laundering Regulations
No full textThis research examines the role of decentralized cryptocurrencies in facilitating money laundering and the challenges they pose to Anti–Money Laundering (AML) regulations through literature review and regulatory analysis. The study reveals that the decentralized, anonymous, and borderless nature of cryptocurrency enables illicit activities via cryptocurrency ATMs, mixing services, and decentralized exchanges (DEXs). For over a decade, the same regulatory problems persist today as were present at the inception of cryptocurrencies. Current AML frameworks, such as the Bank Secrecy Act and the Money Laundering Control Act, are inadequate for this decentralized ecosystem. The analysis critiques the fragmented efforts of U.S. regulatory agencies, identifying enforcement gaps and inconsistencies. To address these vulnerabilities, the paper proposes three solutions: mandating privacy–preserving technologies like zero–knowledge proofs for mixing services, requiring decentralized identity solutions for cryptocurrency ATMs and DEXs, and enhancing public education on cryptocurrency risks and safe practices. The study concludes with an urgent call for comprehensive regulatory reforms and educational initiatives to balance innovation, privacy, and security while combating money laundering in the cryptocurrency sector
The Fox Effect? Implications of Recruiting Corporate Law to Combat Misinformation
No full textIn 2023, Fox Corporation settled U.S. Dominion’s defamation action over Fox News’ broadcast of false election fraud claims after the 2020 presidential election for the staggering sum of $787.5 million. Now, a shareholder derivative action is pending in Delaware against the company’s board of directors for breach of state corporate law fiduciary oversight duties for their failure to prevent such defamatory programming. Beyond the specifics of the case, this development portends the emergence of a new politico-legal strategy—using corporate governance requirements as a weapon to promote press accountability and combat misinformation in public discourse. The question addressed in this Essay is whether corporate governance rules should be extended to impose board liability for oversight failures regarding editorial judgments of news media companies under this public-regarding rationale.
Without expressing approval for the programming decisions of Fox News on election coverage, the Essay argues that it is too threatening to the social value of freedom of the press to use the Fox case to expand board oversight duties of corporate-owned media companies to include defamation risk as a way to combat misinformation. We have dual social and democratic commitments—to the value of the free press and to the value of truthful political discourse—but need to be careful in their calibration. Expansive board oversight duties addressing news content and editorial decisions are both unworkable and too chilling for news organizations. And the likely effectiveness of corporate governance law in limiting political misinformation is uncertain. These circumstances advise caution in deploying shareholder derivative suits against the press lest the resulting journalistic self-censorship ironically serve to undermine informed political discourse in the long run. This is particularly true at a time when the Executive branch is demanding—and obtaining—exceptional press capitulation from a vulnerable industry
Sentencing Roulette: The Absurdity and Unconstitutionality of the Crime of Violence Enhancements
Full text linkThe law needs to be clear. This dictum is true especially with respect to criminal law. Defendants need to be made aware of the statutory and judicial rules surrounding their trial, and sentencing outcome should be foreseeable, even if not predictable. But we have failed. We have failed in granting defendants this sought-after clarity, exposing them to grossly disproportional and disparate sentences. One such failure is found in the Crime of Violence enhancement rules. COV enhancements add years or even decades to sentences of defendants whose previous convictions are classified as \u27violent\u27. Despite this detrimental impact of the COV rules, their disparate application has plagued the justice system for years. Courts have struggled with determining what offenses should be considered \u27violent,\u27 creating discrepancies in the punishment of equally situated defendants.
The current contribution sets forth a comprehensive account of these disparities by surveying the treatment of COV enhancements in the Federal Circuits of Appeal. It pinpoints the absurdities created by COV enhancements, where offenses like kidnapping, robbery, rape, and even murder are sometimes excluded from the definition. At the same time, various petty offenses are classified as violent, subjecting defendants to significant sentence enhancements for relatively non-serious crimes. It is then argued that previous commentators failed to grasp the root cause of the problem - the adverse impact of the COV enhancements is not limited to specific types of offenses, nor is it the product of the Supreme Court\u27s often confusing COV jurisprudence. Instead, COV enhancements are in themselves unworkable, and are doomed to failure regardless of the Supreme Court\u27s treatment of them. Finally, it is argued that COV enhancements in their current form should be deemed unconstitutionally vague
