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The Undead Past: How Collective Memory Configures Trade Wars (forthcoming)
No full textConventional narratives explicate the recent trade war between the United States and China in realist terms, such as a hegemonic struggle symbolized by the “Thucydides’ trap.” Yet this universalist heuristic fatally omits ideational factors, such as beliefs, which are capable of contextualizing a particular foreign affair. The U.S.-China economic conflicts of today are characterized as much by past convictions as by simple power politics. This Article aims to remedy this analytical blind spot by employing the concept of “collective memory.” The central claim is that the particular ways and forms in which the U.S. elites and the public remember, and evoke, momentous economic conflicts of the past elucidate a recidivistic pattern of exceptionalist trade policies of the United States. While drawing from the past, collective memories manifest themselves in the present tense for the present purpose. Three decades ago, the Cold War and Japan-Bashing planted collective memories on economic warfare in the minds of the U.S. policymakers and the public. Those collective memories, this Article argues, shape how the Trumpian trade war is waged in the present time. The Article also warns that false analogies triggered by such collective memories may seriously distort the legal and economic reality of the contemporary global sphere. This Article concludes that the United States needs to be more susceptible to external opinions different from its own, thereby cultivating counter-memories that can disabuse the United States of those myths subscribed to by its power elites
Combating the Opioid Crisis: How a Discretionary Departure May Encourage Application of the “Death Results” Sentencing Enhancement
Get PDFIn March 2018, the National Institute on Drug Abuse declared the misuse of and addiction to opioids a national crisis. With the number of drug overdose deaths exceeding 72,000 in 2017, then–U.S. Attorney General Jeff Sessions instituted a policy instructing federal prosecutors to pursue the most serious, readily provable offense. To combat the opioid epidemic, federal prosecutors can seek the “death results” sentencing enhancement, which creates a mandatory minimum sentence of twenty years when a defendant commits a drug offense and death or serious bodily injury results from the use of the drug. This sentence is significantly longer than the statutory penalty for simple drug distribution.
The Seventh Circuit, in United States v. Harden, considered as a matter of first impression whether the “death results” enhancement requires the government prove the drug user’s death was reasonably foreseeable to the defendant. It held the death need not be foreseeable because the statutory language does not call for a finding of proximate cause. While the Seventh Circuit reached the right decision in Harden, court precedent applies two very different approaches to two substantially similar fact patterns, leaving some courts asking for discretion.
While the legal reasoning as to why the government need not prove foreseeability is sound, judges should be able to depart from the mandatory minimum in cases where the sentence would be a miscarriage of justice. Granting a judge discretion in the form of a downward departure will not inhibit narcotics prosecutions and may in fact improve the opioid crisis. Prosecutors will not have to prove the death was foreseeable. Defendants with cases that teeter the line between accidental and criminal conduct will have an avenue of relief. Defendants with cases warranting the mandatory minimum sentence will receive them. Those who don’t can be directed to addiction programs and assist law enforcement in pursuing their supplier, which in turn decreases the number of addicts while continuing to pursue investigations that warrant the use of these resources
Moderating Content Moderation: A Framework for Nonpartisanship in Online Governance
No full textInternet platforms serve two important roles that often conflict. Facebook, Twitter, YouTube, and other internet platforms facilitate the unfettered exchange of free speech by millions of people, yet they also moderate or restrict the speech according to their “community standards,” such as prohibitions against hate speech and advocating violence, to provide a safe environment for their users. These dual roles give internet platforms unparalleled power over online speech—even more so than most governments. Yet, unlike government actors, internet platforms are not subject to checks and balances that courts or agencies must follow, such as promulgating well-defined procedural rules and affording notice, due process, and appellate review to individuals. Internet platforms have devised their own policies and procedures for content moderation, but the platforms’ enforcement remains opaque—especially when compared to courts and agencies. Based on an independent survey of the community standards of the largest internet platforms, this Article shows that few internet platforms disclose the precise procedural steps and safeguards of their content moderation—perhaps hoping to avoid public scrutiny over those procedures. This lack of transparency has left internet platforms vulnerable to vocal accusations of having an “anti-conservative bias” in their content moderation, especially from politicians. Internet platforms deny such a bias, but their response has not mollified Republican lawmakers, who have proposed amending, if not repealing, Section 230 of the Communications Decency Act to limit the permissible bases and scope of content moderation that qualify for civil immunity under the section. This Article provides a better solution to this perceived problem—a model framework for nonpartisan content moderation (NCM) that internet platforms should voluntarily adopt as a matter of best practices. The NCM framework provides greater transparency and safeguards to ensure nonpartisan content moderation in a way that avoids messy government entanglement in enforcing speech codes online. The NCM framework is an innovative approach to online governance that draws upon safeguards designed to promote impartiality in various sectors, including courts and agencies, clinical trials, peer review, and equal protection under the Fourteenth Amendment
THE GRASS IS GREENER SOMEWHERE: PROTECTING PRIVACY RIGHTS OF MEDICAL CANNABIS PATIENTS IN THE WORKPLACE
Get PDFA TAXONOMY OF THE HARDSHIPS CHILDREN OF IMMIGRANT PARENTS FACE FOLLOWING PARENTAL DEPORTATION AND RECOMMENDATIONS TO PROTECT THE CHILDREN’S RIGHTS
Get PDFFacebook Message Not Delivered: Employers May Challenge Authorization of FLSA Collective Action Notice Arbitration-Bound Employees
Get PDFWhen a plaintiff seeks to send notification of his Fair Labor Standards Act claim to a collective class of potential plaintiffs, the district court must authorize which recipients may receive this notice. Ordinarily, the court determines that employees of the same position or under the same employer receive collective action notice, but may a district court authorize mailing of notice to employees proven to have signed mandatory arbitration agreements? In Bigger v. Facebook, Inc., the Seventh Circuit Court of Appeals held that if a defendant-employer proves that specific employees have entered mandatory arbitration agreements, they may not receive FLSA court notice in a collective action claim. Moreover, the court must afford all parties the opportunity to prove or disprove the existence and validity of these agreements through the Seventh Circuit’s new framework mandating an initial stage of discovery. Previously, the Seventh Circuit lacked any formalized framework to make this determination, leaving complete discretion over the formation of collective actions to district courts. Without guidance, many district courts adopted a two-step certification process that admitted a wider group into a collective action before excluding specific opt-in plaintiffs. The Seventh Circuit joins the Fifth Circuit in addressing the issue of whether employees are bound by mandatory arbitration agreements at this earlier point in litigation. This decision, however, understated how this new framework aligns district courts with the Supreme Court’s decision in Hoffman-LaRoche, Inc. v. Sperling and the goals of the Federal Arbitration Act and the Fair Labor Standards Act. This article discusses how the district courts’ role in determining the scope of FLSA collective actions mandates this result in Bigger v. Facebook, Inc
