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Independent Directors and Corporate Governance in Thailand: A New Frontier
Get PDFAsian companies\u27 equity offerings and securities markets have grown significantly, including in Southeast Asia (Part I). Yet corporate governance is undergoing only a gradual transformation, especially where government and family-linked listed companies remain common. Foreign investors and international organizations (including ASEAN) have therefore been pressing for further reforms, including independent director (ID) requirements to monitor executives and others. Part II examines Thailand, building on recent comparisons of mostly larger Asian markets. Part II.A explores when and why ID requirements were introduced-as early as 1993. Part II.B examines how they were introduced-mandatory regulation, supplemented by comply-or-explain requirements, then encouragement through annual surveys. Part II.C examines what the ID requirements are-noting understandable disqualifications for substantial shareholders, but also an unusual ex ante disqualification if involved in a competing company. Part II.D explores who make up the now large group of Thai IDs. Original empirical analysis finds accounting and other business backgrounds but also engineering and military connections. Part II.E then explores where impacts arise from these IDs, now or potentially. Part III concludes that Thai IDs have made a growing difference especially over the last two decades but face ongoing challenges for effective monitoring and other roles, and deserve ongoing research
The Public Trust Doctrine, Property, and Society
Get PDFThe public trust doctrine creates a set of sovereign rights and responsibilities with regard to certain resource commons, obligating the state to manage them in trust for the public. In the last century, the doctrine has gradually transformed from an affirmation of sovereign authority over trust resources to a recognition of sovereign responsibility to protect them for present and future generations. Especially in the United States, it has evolved through common, constitutional, and statutory law to protect a broader variety of resources and associated values, including ecological, recreational, and scenic values. Today, the doctrine is frequently invoked in natural resource conflicts, some defending environmental regulations against constitutional takings claims, and some of which push the boundaries of previously recognized trust values, such as recent appeals to public trust principles in support of meaningful climate governance. After reviewing the origins of the public trust in early Roman and English law, this chapter explores its development in US law to protect different values, applied to different resources, and vindicated by different legal mechanisms in different states. It reviews the two most famous American public trust cases over a hundred year span, the U.S. Supreme Court’s 1892 decision in Illinois Central Railroad v Illinois and the California Supreme Court’s 1983 Audubon Society decision at Mono Lake, and then explores the incorporation of the doctrine in different state constitutions. It considers the expanding role of the doctrine as a defence to constitutional takings claims and considers whether it should be understood as a constraint on all sovereign authority, including federal authority, and the significance for climate-related public trust advocacy. It concludes with reflections on the ongoing development of public trust principles and contrasting environmental rights internationally
Circuit Circus: Defying SCOTUS and Disenfranchising Black Voters
Get PDFLaw students are uniformly taught thatfederal circuit courts cannot and will not overrule Supreme Court precedent under any circumstance. This is not true. They can, with little fear of corrective mechanisms like en banc oversight, Supreme Court review, or congressional override. And in certain circumstances, they are bound to do so by the law of the circuit. Under the prudential law of the circuit doctrine in-circuit precedent binds circuit courts, even in scenarios where conflicting long-standing Supreme Court precedent exists. Circuits can only depart from erroneous circuit precedent ifa later-decided SCOTUS or en banc decision obviates the circuit precedent. This means that if in the year 2000, a circuit court refuses to obey an on-point Supreme Court precedent decided in 1997, then the circuit precedent, not the Supreme Court precedent, binds all later circuit panels in that circuit until the Supreme Court, or an en banc panel takes up the issue again or until Congress overrides the circuit precedent. However, these fail-safe apparatuses offer little deterrence value. Estimates of an individual panel\u27s risk of SCOTUS and en banc review are as low as .002% and .008% respectively. In at least one case involving black vote denial plaintiffs in the Sixth Circuit, later-decided SCOTUS precedent was insufficient to override the precedential weight of circuit precedent despite irreconcilably conflicting with earlier circuit precedent. Jurists believe the law of the circuit rule to be necessary to prevent intracircuits plits, and to encourage efficiency and robust discussion of an issue between circuits prior to SCOTUS review (otherwise known as percolation). Though intracircuit unity, judicial efficiency, and percolation are valuable prudential concerns, the current interpretation and in some cases the express language of the law of the circuit policy violates established Supreme Court precedent, which forbids lower federal courts from overruling the Supreme Court under any circumstance. Because this concept has become so deeply engrained in the legal conscience, scholars rarely engage its problematic aspects, allowing it to hide in plain sight. Particularly worrisome is the application of the law of the circuit to statutory interpretation in the vote denial context: ruling that a certain class ofplaintiffs lacks an implied private right of action to sue for vote denial under the Civil Rights Act bars all future Civil Rights Act plaintiffs from judicial recourse under that Act. The law of the circuit compounds this danger because circuit panels are prudentially bound by circuit precedent, even if that precedent conflicts with binding Supreme Court precedent, creating preventable problems that carry grave consequences. In light of the Supreme Court\u27s most recent ruling in Bmovich v. DNC severely limiting the application of the vote denial provisions of § 2 of the Voting Rights Act, the Civil Rights Act of1957 is emerging as one of the last bulwarks against vote denial. However, should the Sixth Circuit\u27s SCOTUS defiance continue in vigor, we may continue to see further the demise of the remnants of the omnibus civil rights era legislation undergirding our enfeebled democracy
Who Owns the Critical Vision in International Legal History?: Reflections on Anne Orford\u27s International Law and the Politics of History
Get PDFPolice Ignorance and (Un)Reasonable Fourth Amendment Exclusion
Get PDFThe Fourth Amendment exclusion doctrine is as baffling as it is ubiquitous. Although courts rely on it every day to decide Fourth Amendment violations as well as defendants\u27 motions to suppress evidence obtained through these violations, virtually every aspect of the doctrine is a subject of fundamental disagreement and confusion. When defendants file motions to suppress unlawfully obtained evidence, the government often argues that even if a violation of the Fourth Amendment has transpired, the remedy of evidence suppression is barred because the police acted in good faith, meaning the officer reasonably, albeit mistakenly, believed the search or seizure was lawful. Judges and commentators sharply disagree about whether and which police mistakes of law are, in fact, reasonable so as to deny the application of the exclusionary rule remedy. They also disagree on the nature and scope of the reasonableness standard and its impact on the very existence of the exclusionary rule as a remedy against police misconduct. This Article offers a new approach to the good faith exception doctrine based on a revisionist reading stemming from the Supreme Court\u27s recent decision in Heien v. North Carolina. There is widespread consensus that the good faith exception to the exclusionary rule doctrine determines the application of the evidence suppression remedy to acknowledged violations of the Fourth Amendment. But I argue that the exception is, in fact, better understood as an inquiry into the substance of Fourth Amendment rights and not into the application of the remedy. After the Supreme Court holding in Heien that the reasonableness of a police mistake of law is relevant in the evaluation of conduct under the Fourth Amendment, there is no need for a good faith reasonableness exception to the exclusionary rule remedy when that rule kicks in only after a violation of the Fourth Amendment. This approach renders the good faith exception to the exclusionary rule doctrine redundant. Instead of ruling that the exclusionary rule does or does not apply, courts in these cases can simply hold that an unreasonable search did or did not take place. This approach bears a significant practical payoff: courts will no longer be able to declare broadly that the police have violated the Fourth Amendment while in the same breath undercutting the value of remedying this violation based on two different questions on what constitutes one reasonable police officer
Students, Threat, Race, and Police: An Empirical Study
Get PDFThe presence of law enforcement officers in schools is more pronounced today than ever before, altering the educational experiences of students nationwide. Although the benefits of having police in schools are unclear, the legal and policy implications flowing into students\u27 lives are more established. Empirical studies repeatedly have documented a strong connection between regular police contact with schools and the increased rate at which school officials report students to law enforcement for committing various offenses, including lower-level offenses that arguably could be handled internally. This Article provides the first in-depth empirical study of data spanning a decade that identifies characteristics of schools more likely to have regular contact with law enforcement. Our analyses reveal that a school\u27s sustained contact with law enforcement is not as heavily influenced by the factors one might presume or the normative literature supports, such as actual school disorder and perceived external threats. Instead, our analyses suggest that the primary drivers relate to, in one form or another, perceived internal threats of disruption and violence by the students themselves. Relatedly, and even more troubling, our findings suggest that student race influences decisionmaking. For example, the concentration of African-American students in a school was associated with regular law enforcement contact, even after controlling for school disorder, perceptions of neighborhood crime, school size, and other school characteristics. This finding comports with other empirical studies suggesting that individuals may implicitly associate areas populated with larger concentrations of African Americans with disorder, danger, and crime
FSU Law Focus - 10/14/2022
Get PDFFrom the Dean: 2022 Faculty Scholarship Brochure; Alumni Awards Recipients Honored; Alum Profile: Ashley E. Gault (\u2712); Student Profile: 3L Alberto Garcia Marrerohttps://ir.law.fsu.edu/fsu-law-focus/1012/thumbnail.jp