All posts filed under: Faculty Scholarship

Big Data

Public Health Law Monitoring and Evaluation in a Big Data Future

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Law is important to public health. It provides government health agencies with their jurisdiction and regulatory authority. Laws and regulations are routinely used in the name of health to regulate behavior and foster safer environments. More fundamentally, law’s influence in shaping everyday life and the socioeconomic and physical environments in which it unfolds has a powerful impact on both the level and distribution of health. Despite law’s importance, and despite the strong orientation toward scientific evaluation in public health, the study of the impact of laws and legal practices on health (“public health law research”) has been uneven. While research of the highest quality has been sustained in a few areas like auto safety and tobacco control, it has been infrequent or truncated in others, like gun control and HIV/AIDS. The research that has been supported is almost entirely aimed at evaluating deliberate legal interventions. Epidemiological research on unintended health effects of non-health laws has been almost entirely neglected. Overall, the national investment in rigorously separating the laws that help from the laws that hurt has …

Leaves in the Sun

Next Generation Compliance and Enforcement: Back To The Future

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This paper considers a range of present day and forward looking activities associated with ‘next generation’ environmental compliance and enforcement. It does so, in part, by reflecting and looking ‘back to the future’ to see what lessons have already been learned and what information and holdings already exist that might assist environmental compliance and enforcement professionals into the future. The paper understandably and perhaps unsurprisingly considers aspects that fall under broad groupings of: tools and technology; behavioural and social sciences; and systems and approaches. However, central to the paper is the important but sometimes underused role of environmental enforcement networks and the fact that often the human element of compliance and enforcement practitioners themselves can be overlooked or not fully appreciated. The authors, between them, have in excess of 77 years of experience in undertaking, leading and supporting environmental compliance and enforcement efforts. Their activities, while based in three continents (Europe, North America, and Australasia), have informed global and regional environmental enforcement networks in most parts of the world. The paper does not attempt to …

Alter Hall Flags

Bespoke Transitional Justice at the International Criminal Court

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This chapter grapples with the question of whether the International Criminal Court should be conceptualized as a mechanism of transitional justice. Most schools of thought insist that transitional justice is either an inappropriate or an unrealistic goal for the Court. Some scholars have proposed that the Court might more accurately be theorized as seeking to achieve political goals through “juridified diplomacy”. Others suggest that the Court should speak primarily to a global, rather than local, audience. A third school of thought criticizes international criminal law as insufficiently focused on the preferences of societies affected by mass violence. Going one step further, some theorists suggest that the Court should be set aside in favor of mechanisms that are more responsive to local preferences. Though the incorporation of the International Criminal Court into a “locally owned” transitional justice paradigm faces substantial challenges, this chapter draws on a theory of bespoke transitional justice to suggest ways in which this knotty relationship might be better designed. Download the Paper at SSRN

Hollis_Cyberlaw_June2015

Autonomous Legal Reasoning: Legal and Ethical Issues in the Technologies of Conflict

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One of the highlights of my Fall semester was the opportunity to host a one-day workshop at Temple Law on how autonomous technology may impact the future of international humanitarian law (IHL) and the lawyers who practice it.  With co-sponsorship from the International Committee of the Red Cross (specifically, Rob Ramey and Tracey Begley) as well as Gary Brown of Marine Corps University, we wanted to have an inter-disciplinary conversation on the way autonomy may implicate the practice of law across a range of new technologies, including cyberwar, drones, and the potential for fully autonomous lethal weapons.  Although these technologies share common characteristics — most notably their ability (and sometimes their need) to operate in the absence of direct human control — discursive silos have emerged where these technologies tend to be discussed in isolation. Our workshop sought to bridge this divide by including experts on all three technologies from an array of disciplinary backgrounds, including IHL, political science, and ethics (see here for a list of participants).  Fortunately, the day itself lived up to the hype, with a detailed …

Financial Newspaper

Infinite Financial Intermediation

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Intermediation is a fundamental fact of finance. Intermediaries like commercial banks, investment banks, stockbrokers, mutual funds, and stock exchanges form the fabric of modern finance. Yet despite all these financial links, entrepreneurs and innovators continue to endeavor towards the possibilities of fundamentally disrupting and disintermediating these existential financial ties, breaking apart from the financial main, and building new financial islands. This Article offers a studied commentary of those financial links and those disengaging endeavors, the ties that thread the fabric of modern finance and the efforts to tear those threads asunder. It presents an examination of the functional evolution of financial intermediation, explains the difficulties of true financial disintermediation by revealing the underappreciated links that remain when traditional links are decoupled, and highlights potential implications and recommendations arising from such a revelation. Building upon a rich literature that spans law, economic, finance, and sociology, it seeks to explain the strong adhesiveness of financial intermediation and explore the looming challenges presented by future financial intermediation. Collectively, this Article provides a different perspective for thinking about financial …

Wedding

A Union Unlike Any Other: Obergefell and the Doctrine of Marital Superiority

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Obergefell v. Hodges is a historic decision that accomplishes the important task of requiring marriage equality across the nation. To many, the opinion’s romantic language gives particular poignancy to the historic moment when the long-recognized fundamental right to marry was finally extended to same-sex couples. However, what people see as the romance of the opinion masks a profoundly conservative decision, one that abandons meaningful equality analysis, and instead engages in a full-throated embrace of the conservative institution of marriage as an essential and necessary cornerstone of American society. In so doing, the decision advances a new and troubling doctrine of marital superiority that explicitly undercuts the dignity and worth of non-marital relationships. Much to the dismay of those who may have wished to allow states to experiment with other, more progressive relationship-recognition forms, Obergefell’s marital superiority rhetoric may guarantee that marriage will, for the foreseeable future, remain the only recognized relationship in town. Download the paper from the Georgetown Law Journal.

Copyright

Time to Reboot? DMCA 2.0

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Perhaps the most vexing question in copyright law today is whether Internet Service Providers (ISPs) should be liable for the infringing acts of their subscribers. While the 1998 Digital Millennium Copyright Act (DMCA) provides a number of safe harbors that effectively immunize ISPs from most liability for subscribers’ infringing conduct, a larger questions looms: Should ISPs nevertheless be responsible for preventing infringement occurring on their sites? Since the enactment of the DMCA, copyright infringement — through BitTorrent peer-to-peer systems, video streaming, direct download cyberlockers, and other file sharing networks — has increased at a phenomenal rate. Worldwide, hundreds of millions of Internet users seek out infringing content. The current DMCA scheme places the onus on copyright holders to root out infringement and then seek the help of ISPs through the DMCA’s notice and takedown provision. This system proved adequate for a while, but some question whether in light of the massive infringement occurring online, whether ISPs should take on a greater role in curbing infringement. As might be expected, there is no consensus. Copyright holders …

Wedding

The Real Marriage Penalty: How Welfare Law Discourages Marriage Despite Public Policy Statements to the Contrary

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On marriage, people lose welfare benefits abruptly. It is devastating to them, diminishing and in some cases overwhelming any economic benefits of marriage. It makes marriage unattainable and a status for the rich alone. It is also a surprising and unintended outcome of policymakers, who since at least Reconstruction and with much fanfare in the 1996 welfare reform touted marriage for the poor as a self-help measure and poverty cure. It is these same government policy makers, however, who make marriage impossible. Low-income people tend to marry each other. Both incomes need to be brought into the home to raise people out of poverty. When people lose welfare on marrying, the family’s combined income is often lower than if they had stayed separated or chose to live together without marrying. They cannot survive. Unable to marry, they are statistically less likely to remain together as long. They lose out on statistically more long-term relationships, long-term spousal government and employee benefits, and legal protections on the dissolution of their relationships from divorce and estate laws. “When …

People meeting

Rethinking Contractual Choice of Law: An Analysis of Relation Syndrome

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The doctrine of contractual choice of law provides the parties with the power to select the law that governs their business or other private activities crossing jurisdictional boundaries. An issue facing the choice is whether the law chosen by the parties must bear certain relation between the enacting state or country and the parties, transactions or disputes. In the United States, such relation is required in order for the chosen law to become enforceable, but elsewhere in the world, the relation is not essential to the choice of law by the parties. In 2001, as part of their initiative to have a broader reform, the American Law Institute and the National Conference of Commissioner on Uniform State Laws attempted to replace U.C.C. §1-105 with §1-301. The major change was the deletion of the “reasonable relation” requirement for contractual choice of law. The replacement was considered as a necessary step in the reform, and it was also deemed as an effort to align the U.C.C. with the established international commercial practices. Unfortunately, however, the attempt failed. …

Business people overlooking city

A Long View of Shareholder Power: From the Antebellum Corporation to the Twenty-first Century

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For most of the twentieth century, the conventional wisdom held— probably correctly—that shareholders in America’s large, public corporations were passive and powerless and that managers wielded the real power. Beginning in the 1980s, however, shareholders in the form of institutional investors started to push for a greater say in corporate decision-making. In the twenty-first century, hedge funds have upped the ante, fighting for major changes in corporations whose shares they own. Once-imperial CEOs have now become embattled as they fight, but often lose, against activist shareholders demanding policy changes, new dividends, board representation, and even the sale or break-up of corporations. In short, things have changed. This Article situates the present-day rise of shareholder power by taking a long view of the previous two centuries, moving beyond traditional accounts to reach all the way back to the beginnings of the American business corporation in the early nineteenth century, then following the story of shareholder power up to the present day. Its long view reveals the complicated and shifting nature of shareholder power, documenting how periods …