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The Bystander in the Bible
Get PDFIn this study I have set out to investigate the stories that Jews and Christians have told for over two thousand years. Surveying the Biblical literature, I have looked for verses, passages and stories related to the issue of the bystander’s duty to act on behalf of the victim. The issue of a person’s duty to help someone in need and to be proactively engaged on behalf of the most vulnerable is everywhere present in both the Hebrew and Christian scriptures. The Biblical proscriptions are not just suggestions to “do the right thing” but divine ethical demands to action on behalf on the one in need. A failure to act on behalf of one in need will lead to either exclusion from the community in this age or to judgment in the next. Both Jews and Christians are identified fundamentally by their actions towards others.
This essay does not argue that only Jews and Christians know how to act or that Biblical expectation should be imposed on a secular world. However, the ancient religious texts still have a positive normative power to shape non-religious legal discussion. The Biblical texts speak of the duty of a person to act on behalf of another because of the covenantal relationship that God has with humans which structures “human-to-human interaction in important ways.” God’s covenant with the chosen people, which Christianity then appropriated and re-interpreted through its understanding of Jesus, expected one to care for all persons and not stand by while someone was victimized. People of faith believe that God cares. Therefore people, reflecting the divine intention, should care
A Cautionary Tale
Get PDFIt is imperative when talking about accountability and the enforcement of internationally recognized and accepted criminal norms governing conflict, when talking about investigating and prosecuting atrocity crime, not to raise expectations that have little or no chance of being met. Expanding the modes of liability to reach bystanders has the potential to raise such expectations, pushing the range of subjects that victims, survivors and others with an interest in the outcome of atrocity crime investigations and prosecutions expect will be prosecuted out beyond those as to whom there is likely to be political will to prosecute and certainly beyond the capacity and resources likely to be available to prosecute them. Inevitably, confidence in the process for holding people accountable for atrocity will be corroded and the legitimacy of the outcomes achieved by the process will be compromised. Holding out the prospect that too much can be done is likely to be the enemy of being able to do enough
Community Based Research: Introducing Students to the Lawyer’s Public Citizen Role
No full textLaw faculty teach, produce scholarship, and may engage in legal practice through clinical supervision or pro bono work. This article argues that by engaging students in community based research, law faculty will not only enhance the quality of justice available in their communities, but will also present law students with a good model of the “public citizen” role that all attorneys are called upon to assume. The article then shares my adventure in community based research with my law school’s pro bono program and community partners as an illustration of the pitfalls and promise of community based research
Behavioral Public Choice and the Carbon Tax
Get PDFIn response to the historic Paris Agreement on climate change and to the Environmental Protection Agency’s recently finalized Clean Power Plan, economists and other climate policy experts have renewed the call for the United States to adopt a carbon tax. Opposition among the public presents a major obstacle. While a majority of the public supports government action on climate change, most people favor the use of “green” subsidies and command-and-control regulations — a fact that frustrates economists of all political stripes who contend that a carbon tax would be much cheaper and more effective. This Article argues that a cognitive bias known as opportunity cost neglect pervades the public’s thinking about climate policy instruments, causing people to ignore the hidden costs of subsidies and command-and-control and, for that reason, to support less efficient alternatives to the carbon tax. The Article will help proponents of the carbon tax better tailor their advocacy efforts. The Article also contributes to the burgeoning literature on behavioral public choice, which shows how the cognitive biases of political actors (including voters) influence the law.
In addition, the Article points to the possibility of a Pyrrhic victory for conservative policymakers who oppose the carbon tax. Rather than averting major government action on global warming, defeating the carbon tax will very likely facilitate adoption of more costly substitutes that the public strongly favors as a result of cognitive bias. In that respect, the Article lends support to recent proposals by a small, but growing group of conservative scholars, who argue for a policy swap in which conservatives agree to a revenue-neutral carbon tax in exchange for support from environmentalists for abandoning the government’s current regulatory approach. The Article also suggests that conservative policymakers rethink their position on the carbon tax given that the states are currently considering which policy options to pursue in satisfying their respective obligations to reduce carbon emissions under the Clean Power Plan
E. Bement & Sons V. National Harrow Company: The First Skirmish between Patent Law and the Sherman Act
Get PDFIn the 1890s, the Sherman Act presented a host of unknowns for patent owners and lax enforcement enabled the proliferation of trusts like the Harrow Trust embodied in the practices of National Harrow. Bement, a profligate license violator, ended up fighting the trust all the way to the Supreme Court, but the surprising outcome left an enduring impression on the interplay between antitrust and patent law. In this way, the case has been both important and forgotten over time. Given the outcome in Actavis, and the possibility for a change of personnel on the Court that may shift it further to Chief Justice Roberts’s dissenting view, perhaps the time has come for this forgotten case to be remembered for the way in which it pushed along the important patent-antitrust cases of the twentieth century
To Catch a Predator Abroad: A Call for Greater Extraterritorial Enforcement of Sexual Exploitation of Children
Get PDFWhat can be done do increase extraterritorial enforcement of sexual exploitation crimes? To start, it would help if the United Nations established a convention to impose an obligation on signatory nations to adopt a criminal prohibition of sexual exploitation. In her presentation to the UN Human Rights Council, Special Rapporteur Najat Maalla M’jid suggests proposing a set of laws that can be easily adopted by all states. Such a broad set of laws would need to include a legal definition of child pornography, criminalize the mere possession of child pornography, criminalize sexual exploitation crimes facilitated by computers, and require all Internet Service Providers to report possible offenders and retain data to use in prosecutions. M’jid also suggests creating a global database of sorts to track typical offender behavior and what laws and enforcement tools actually work
Incomplete Integration: Water, Drought, and Electricity Planning in the West
Get PDFThe water-energy nexus is increasingly important as climate change alters social, policy, and economic tradeoffs and choices. This is particularly true in the arid western United States. This article provides an original empirical assessment of 33 integrated resource plans (IRPs) of electric utilities in that region. The analysis shows that only a minority of utilities address the risk of drought in their IRPs. Even fewer use their IRPs to develop concrete plans to address drought risk. Consequently, we suggest four different strategies for utilities to better integrate water and electricity planning. Importantly, our analysis reveals that legal and policy changes may best encourage such improved planning integration. In developing these conclusions, the article also (1) overviews different cooling technologies used for electricity generation facilities, (2) details cooling technology and water use for utilities in the West, and (3) provides and analyzes original data on whether utility IRPs assess different water- and non-water related risks
Corporate Deferred Prosecution as Discretionary Injustice
Get PDFA recent federal appellate court ruling of first impression permits the resolution of allegations of serious corporate criminal wrongdoing by way of an Alternative Dispute Resolution mechanism called Deferred Prosecution, without appropriate judicial review. This Article describes why this ruling is ill-advised, and suggests how other courts might address these same legal issues while arriving at different conclusions. This Article argues that if federal prosecutors are going to continue using Deferred Prosecution Agreements (“DPAs”) in addressing allegations of corporate criminal misconduct, then that discretionary power must be confined and checked through meaningful judicial review. The overriding concern with the appellate court ruling is that if the law surrounding corporate DPAs is permitted to develop on its current course, federal prosecutors will continue to use these agreements in a discretionary manner that both subordinates public interest and undermines separation of power principles
Altering Rules, Cumulative Voting, and Venture Capital
Get PDFLegal scholars have long debated the proper balance betweenmandatory and default rules in corporate law. One group — the contractarians — maintain that corporatelaw should function as an off-the-rack set of default rules that approximate, as much as possible,the rules that the transacting parties would have agreed to if bargaining were costless. The contractarians are generally skeptical of mandatory rules because they interfere with the ability of the parties to decide for themselves how to organize their economic relationships. Another group of scholars—the anti - contractarians — have argued that corporate law should seek to achieve certain regulatory objectives separate and apart from the goal of private wealth maximization. In order to achieve these objectives, such as the protection of uninformed investors, these scholars argue that it is necessary that corporate law contain some mandatory rules that cannot bealtered by the transacting parties