3722 research outputs found
Sort by
A Prophylactic Approach to Compact Constitutionality
Get PDFFrom COVID-19 to climate change, immigration to health insurance, firearms control to electoral reform: state politicians have sought to address all these hot-button issues by joining forces with other states. The U.S. Constitution, however, forbids states to “enter into any Agreement or Compact” with each other “without the Consent of Congress,” a requirement that proponents of much interstate action, especially around controversial topics, would hope to circumvent.The Supreme Court lets them do just that. By interpreting “any Agreement or Compact” so narrowly that it is difficult to see what besides otherwise unlawful coordination qualifies, the Court has essentially read the Compact Clause out of existence. Scholars have offered substitute standards. But those efforts serve to corroborate the analytical point on which current caselaw rests: that the infinite variety of ways in which states can collaborate makes separating constitutionally suspect from safe agreements impossible.This Article presents a prophylactic path forward focused not on what “any Agreement or Compact” means, but on how “the Consent of Congress” works. It argues that Congress should encourage possible-compact reporting by establishing a system where submission plus silence can equal consent. This approach is prophylactic because it avoids difficult constitutional questions by preventing debatable constitutional violations. And it does so while preserving much of the state-favoring functionality of the current system. The Article contends that this approach makes theoretical sense given situations supporting regulatory safe harbors and juridical and political sense given court and congressional precedent. It also argues that the proposed approach facilitates balancing the efficiency, democracy, and community values underlying regional-governance mechanisms better than the current system does
Localizing International Law
No full textSubnational implementation of international law has always been a part of the international legal system. States rely on their own legal and political systems to make international agreements and to give effect to international legal norms and obligations. What invites focused attention to the practice now is 1) the growing prominence of such activity in areas like human rights and climate governance and 2) the emergence of direct engagement by subnational units with each other across international borders without going through their national authorities or governments. These developments warrant attention because of their implications for international law as a governing system. In a global world, subnational activity can be seen as a positive development to increase international law’s ability to reach those most directly affected by international norms and standards. At the same time, subnational practices might create problems of coherence within a normative regime and complicate the ability of states to be held accountable for the actions of jurisdictions for which they are ultimately responsible. Not only are subnational units now visibly active in international fora, they may pursue policies that differ from their national governments and may do so by joining forces with similarly situated jurisdictions in other countries. These practices will not go away and will likely only develop further and intensify. The international law governance question is how should/can international law as a legal system respond, This chapter considers some approaches to this question
The Legal Ethics of Family Separation
Get PDFOn April 6, 2018, the Trump administration announced a “zero tolerance” policy for individuals who crossed the U.S. border illegally. As part of this policy, the administration prosecuted parents with minor children for unlawful entry; previous administrations generally placed families in civil removal proceedings. Since U.S. law does not allow children to be held in immigration detention facilities pending their parents’ prosecution, the new policy caused thousands of children to be separated from their parents. Hundreds of families have yet to be reunited.Despite a consensus that the family separation policy was cruel and ineffective, there has been minimal focus on the attorneys who implemented it. One exception is Professor Bradley Wendel, who recently defended border prosecutors for following the zero-tolerance policy rather than pursuing their own conceptions of the public interest. Since immigration is not the only context in which prosecutors’ charging decisions may have the effect of separating families, the question of prosecutors’ ethical responsibilities in these situations continues to be of paramount importance. This Article contends that prosecutors, as ministers of justice, should consider their charging decisions’ effects on children and families. Because of limited resources and opportunity costs, prosecutors cannot pursue every criminal misdemeanor and inevitably take the public interest into account in making charging decisions. The Trump administration’s “zero-tolerance” policy may have limited prosecutors’ discretion but did not eliminate it. Prevailing prosecutorial standards recognize prosecutors’ broad charging discretion but focus predominately on culpability in individual cases. Prosecutors should instead seek justice for the situation, which could include declining to prosecute nonviolent misdemeanors to keep families intact
Introduction: A Presumption of Possible
Get PDFDean Robert Ahdieh authors an introduction to Volume 10, Number 4 of the Texas A&M Law Review
Negotiation Theories Engage Hybrid Warfare
Get PDFThe concept of hybrid warfare has arisen recently to describe the efforts, short of outright war, used by nations to disrupt and destabilize each other. This Article reviews available negotiation theories, concepts and skills to determine whether they can help governmental actors and business organizations targeted by hybrid warfare respond effectively. In other words, can negotiation theories, concepts and skills be used to engage effectively in “hybrid conflict management”? The Article urges that international diplomacy and multiparty negotiation theories and skills, as well as the more recent scholarship that has developed regarding hostage negotiation and “wicked problems,” are likely to be most relevant. The Article concludes with specific recommendations for business targets and governmental actors
Optional Price Discrimination
Get PDFPrice discrimination generates considerable angst. As merchants develop ever-more-powerful mechanisms for gathering and compiling information about consumers, the specter of fully personalized pricing seems to loom as an ominous threat. Yet a parallel phenomenon quietly coexists with all this distress over tailored prices: models that encourage people to voluntarily contribute, typically in varying amounts, the sums necessary to cover the fixed costs of producing particular goods and services. This Article proposes enabling customers to opt into price discrimination in a more structured way across a broader range of markets. Optional price differentiation can make markets fairer and more inclusive by extending access to more consumers and facilitating provision of a broader array of products and services. For it to do so successfully, however, producers must be able to bind themselves to pricing practices and uses of revenue that are attractive enough to induce participation by both high- and low-valuing consumers, and that are transparent enough to ensure meaningful choice. Government can facilitate experimentation along these lines by setting standards for disclosure and data use, and by policing against fraud and misrepresentation
Shadow regionalism in immigration enforcement during COVID-19
No full textStark variations exist in U.S. immigration enforcement. These variations have persisted even during the COVID-19 pandemic, when special measures that should have constrained variations were in place. This Article argues that variations in discretionary enforcement decisions based on resistance to national policies, bias, illegal tactics, or arbitrariness are unjust and should be curtailed. The Article first distinguishes between transparent sources of variation in immigration law and variations that stem from non-transparent, discretionary determinations. Within the category of discretionary determinations, the Article argues that there are just and unjust variations. It contends that unjust variations raise serious constitutional concerns, weaken preemption doctrine, and require us to reconceptualize the immigration federalism debate to account for cooperative and uncooperative behavior within the federal government itself. Finally, the Article offers solutions to help limit unjust variations
After FTX: Can the Original Bitcoin Use Case Be Saved?
Get PDFBitcoin and the other cryptocurrencies spawned by the innovation of blockchain programming have exploded in prominence, both in gains of massive market value and in dramatic market losses, the latter most notably seen in connection with the failure of the FTX cryptocurrency exchange in November 2022. After years of investment and speculation, however, something crucial has faded: the original use case for Bitcoin as a system of payment. Can cryptocurrency-as-a-payment-system be saved, or are day traders and speculators the actual cryptocurrency future? This article suggests that cryptocurrency has been hobbled by a lack of foundational commercial and consumer-protection law that enabled the rise of other noncash payment systems, such as credit cards. The original payment system purpose of Bitcoin and its progeny is at a legal fork and is, at this moment, eminently savable because of the presence of two uniform acts that are ripe for enactment by the states. First, the 2022 amendments to the Uniform Commercial Code, which add new Article 12, fill in commercial law gaps for cryptocurrency that give it transactional certainty on a par with traditional checks and payment cards. Second, the Uniform Regulation of Virtual Currency Businesses Act creates crucial consumer protection for users of third-party digital wallets, transforming a technical convenience into a safer interface for mainstream users. If proponents of cryptocurrency wish to see it thrive as a mainstream payment system, then they would do well to press for enactment of the 2022 UCC Amendments and the URVCBA. Otherwise, the future of blockchain is likely to be dominated by a potentially endless series of speculative bubbles rather than as acceptance as a payment system
Reflection, Deliberation, and Dialogue: Stipanowich\u27s Contribution to Dispute Resolution
Get PDFDuring the late 70s through the early 21st century, the Modern Progressive Era brought into focus a great concern with the manifest lack of justice in law and society. The urgency of the need for justice spawned multiple reform movements. Along with feminism, law and economics, and others, dispute resolution (often referred to as Alternative Dispute Resolution (“ADR”) or the “Quiet Revolution”) is recognized as a reform movement which lends itself to progressive persuasion. Professor Thomas Stipanowich is a significant scholar of the Modern Progressive Era. Professor Stipanowich has shaped and internationalized dispute resolution theory and practice for more than four decades. This article reflects on the impact of his scholarship throughout the Quiet Revolution
