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Platform Unions
Get PDFHow should we regulate social media platforms to prevent harmful treatment of users? Regulators, advocates, and scholars have grappled with this problem for years. Many proposed solutions, ranging from improving privacy disclosures, to promoting competition between platforms, to requiring platforms to pay users for their data, are at best incomplete.
This Article begins from the premise that platform problems are collective problems and proposes a collective solution: empowering users to organize platform unions. Much like labor unions give employees a say in in their working conditions even when they lack individual bargaining power, platform unions would facilitate collective bargaining over platform policies. They would turn social media “users” into collective participants who have a say in determining platform policies. After making the case for platform unions, the Article turns to implementation, discussing how labor law informs key questions about the design of platform unions
“Criminalizing” Depositions in Arbitration
Get PDFCivil litigation–style deposition practice is preventing commercial arbitration from reaching its full potential as an economical, efficient alternative to a civil lawsuit. Although there is consensus among alternative dispute resolution experts that meaningful limits must be imposed on arbitration discovery to unlock the efficiency benefits of arbitration, depositions continue to feature prominently in commercial arbitrations for at least three reasons. First, civil litigators are addicted to depositions. They reflexively propose overdone deposition practice in arbitrations that replicates their litigation experience. Second, arbitrators may hesitate to disallow deposition discovery out of fear that their awards will be vacated for failure to hear material and pertinent evidence. Third, arbitrators are justifiably concerned that they will be punished in the arbitral marketplace if they deny the deposition requests of the parties and lawyers that select them. These dynamics dictate that consequential change will remain elusive in this area unless the rules regarding deposition practice in commercial arbitrations are amended. While these rules currently are more restrictive in some ways than the rules of civil procedure, they are toothless. They often allow some discovery depositions as a matter of right and grant the arbitrator discretion to permit an unlimited number of discovery depositions upon a modest showing of “cause” or “need.” This Article is the first to propose that the rules of federal criminal procedure—which flatly outlaw discovery depositions—be used as a model for modifying arbitration rules concerning the availability of discovery depositions. Doing so will make arbitration more efficient without meaningfully compromising the ability of arbitration parties to pursue and defend their claims. The fact that prosecutors and defense counsel routinely try high-stakes criminal cases without the benefit of discovery depositions provides strong evidence that arbitration parties can effectively represent their interests without the need for discovery depositions. Further support for this proposal can be found in the case law which holds that the crossexamination of prosecution witnesses by criminal defense counsel at trial (without the benefit of a prior deposition) satisfies a criminal defendant’s Confrontation Clause rights. If criminal defendants can be deprived of their liberty without deposing the prosecution’s witnesses prior to trial, it is fair to require the parties to an arbitration to examine witnesses at a hearing without the added layers of delay and cost associated with discovery depositions
Derivatives Markets Fragilities and the Energy Transition
No full textIt is common knowledge that climate change concerns have prompted countries around the world to plan for a reduction in their fossil fuel dependencies. Yet while much attention has been placed on new low-carbon sources of energy such as wind, solar, and nuclear, comparatively little focus has centered on the commodity inputs, critical metals, needed to create this clean energy. In this article, we argue that at the heart of the energy transition is a commodities transition representing an unprecedented international reliance on critical metals, traditionally capricious commodities traded in global markets. Indeed, nations around the world have begun to stockpile these geographically concentrated, geopolitically potent materials which are poised to take center stage. This critical commodities transition accompanying the energy transition is underappreciated in the legal scholarship despite its widespread implications for many areas, including financial regulation. We use the story of the London Metal Exchange\u27s March 2022 nickel debacle to turn a spotlight on this development and to highlight several areas of existing regulatory frameworks in derivatives markets ripe for reexamination given this commodities evolution. In doing so, this article sets the stage for a research agenda that will examine how regulators and financial innovators can build strong metals markets to enable secure metals supply chains and provide the basis for a sustainable energy transition
Las comisiones de la verdad y los legados coloniales: lecciones desde Colombia (2018-2022)
Get PDFWith its signing of the Havana Peace Agreement in 2016, Colombia sought to end an armed conflict that had lasted more than sixty years and had left nearly nine million victims. The agreement led to the establishment of a transitional justice (TJ) framework, including the Commission for the Clarification of Truth, Coexistence, and Non-Repetition (CEV). This study identifies how the CEV incorporated the legacies of colonialism into its analytical framework. The research is based on in-depth inter-views with twenty scholars specializing in colonialism and/or TJ, nineteen peacebuilders, informal conversations with CEV members, and a review of various volumes of the final report. The findings highlight that the commission adopted a long-term historical perspective, revisiting aspects of Spanish colonialism (including structural racism and the hacienda system as an institution of territorial, political, and economic order) as explanatory factors for the various forms of violence experienced during the armed conflict. Additionally, several volumes of the final report emphasize the ongoing impact of colonial legacies, viewing them more as continuities or “ruins,” using Stoler’s concept (2008). While the possibility of dismantling colonial legacies on a material level due to the CEV’s work is debated, its symbolic significance must be highlighted, especially in a context where the State had sought to erase the colonial past. This article contributes to the emerging literature that examines TJ from a decolonial perspective, providing an empirical analysis of the CEV in Colombia, which we believe can become a key reference for this field
Repurposed Energy
Get PDFWildfires, weather extremes, and other conditions induced partially by climate change add urgency to the project of accelerating the clean energy transition from fossil fuels to zero-carbon energy infrastructure. Yet the hurdles to accomplishing such a massive industrial-scale transition are daunting. Indeed, large renewable energy generation projects regularly face denials or project-killing delays across the United States. This Article proposes a national policy to channel the bulk of new clean energy projects to targeted categories of both rural lands and urban, post-industrial lands that we define collectively as “repurposed energy” sites. Such lands will consist of marginal farmland, abandoned coal mines, retired or retiring coal plants, closed landfills, and other underutilized or abandoned properties known as “brownfields.” Repurposed energy addresses two core problems in the communities slated to host new clean energy generation projects like utility-scale (large) wind farms and solar plants. Developers predominantly pursue clean energy projects in rural and, to a lesser extent, post-industrial communities, where available land is more plentiful, but climate change denial or opposition to clean energy projects can be significant. Yet many of these communities also have flagging economies, underutilized infrastructure, and abandoned lands previously used for energy resource extraction or industrial activities. Prioritizing such lands for clean energy projects addresses the dual problems of clean energy opposition and economic decline, and it comes at a perfect moment. The massive infusion of federal money from the recent federal infrastructure and climate bills can make repurposed energy a reality. In this Article we build on existing legislative and regulatory efforts that prioritize clean energy development on already-disturbed lands to construct a more complete legal and policy framework for implementing repurposed energy. In doing so, we explore the existing laws that can support this approach as well as new policies and cultural narratives needed to ensure that the energy transition comprehensively addresses the governance issues, political economic barriers, procedural hurdles, and environmental and energy justice challenges associated with the massive buildout of U.S. energy infrastructure. This build-out is a critical step toward combating climate change. As with all challenges in the energy realm, repurposed energy is far from a complete solution, but it is an achievable one and, we argue, a central enabling pillar of a successful energy transition
A Never-Ending U.S.-China Solar Trade War? The Uyghur Forced Labor Prevention Act and International Trade Law
Get PDFMaking International Human Rights Treaties Relevant to the Protection of Human Rights in African Countries
Get PDFHistoricizing Same-Sex Marriage Debate in the Legal Periphery: Savigny, Nakagawa, and the Korean Marriage
Get PDFGlobal advocates for incorporating same-sex marriage into local family laws often argue for it using universal language of rights and nondiscrimination. They also contrast progressive countries with those that are behind in this respect. This Article resists a thin comparison driven by a universalist impulse and instead engages in an exploration of “local” family law in South Korea. Using the recent Supreme Court decision that extended spousal coverage of national health insurance to same-sex couples as an entry point, this Article offers brief histories of two distinct legal ideas and developments within Korean family law, both involving a deep and constant engagement with foreign laws. These two deeply rooted, conflicting legal ideas shape the ongoing conversation about same-sex marriage. The first story traces back to the German jurist Friedrich Carl von Savigny (1779-1861)’s idea that family law is part and parcel of a moral, customary, and therefore mandatory order that regulates one’s status. Introduced via Japan and central to classical understandings of marriage in Korean legal thought, this idea has persisted in Korea and is utilized in arguments against same-sex marriage. The second story traces a contradicting trend in Korean law: the jurisprudence of de facto marriage, linked to Japanese jurist Nakagawa Zennosuke (1897-1975) and understood to embrace modernist tendencies. Contrary to the classical notion that family law is customary and mandatory, de facto marriage eases certain rules of marriage and embraces non-conventional families. More fundamentally, de facto marriage represents the fragmented existence of marriage in law and reveals the contradictions in the classical conception of marriage as stable and integrated. Revisiting the recent Supreme Court case with this insight, the Article concludes by cautiously endorsing the pragmatic, localized, yet progressive reform strategy used by Korean marriage equality advocates in the recent case
Subjective Costs of Tax Compliance
Get PDFThis Article introduces and estimates the “subjective costs” of tax compliance, which are costs of tax compliance that people experience directly and individually. To measure these costs, we conducted a survey experiment assessing how much taxpayers would pay to reduce the unpleasantness associated with filing a tax return. The experiment revealed that taxpayers are more concerned about inadvertent mistakes in their tax filings than the time spent on compliance. Respondents also only ascribed meaningful value to eliminating all tax compliance work; they ascribed essentially no value to marginal time savings. Additionally, taxpayers were indifferent between simplification services offered by a private company versus the government. These findings have important implications for theory and policy. From a theoretical perspective, these survey results call into question the nearly universal practice of using market wages to monetize the time that people spend on tax compliance work. Indeed, our results suggest that people value their tax compliance time at a rate much lower than their hourly wage. Regarding policy, these findings counsel policymakers to think big when it comes to reducing tax compliance costs and to focus on simplifications that reduce mistakes rather than merely saving time. They also suggest that policymakers need not be overly concerned about mistrust of government in the context of tax simplification and automation services