Postscript | Intellectual Property LawTrademark’s “Ship of Theseus” Problemby Matthew T. Bodie* Vol. 95, Postscript (Nov 2021)95 S. Cal. […]
Postscript | GovernmentA Dose of Dignity: Equitable Vaccination Policies for Incarcerated People and Correctional Staff During the Covid-19 […]
The market for cryptoassets is burgeoning as distributed ledger technology transforms financial markets. With the extraordinary growth in the crypto-markets comes the need for regulation to promote efficiency, capital formation, and innovation while protecting investors. With the need for regulation comes enforcement. The blockchain revolution in capital and financial markets has already attracted the attention of enforcement agencies in many jurisdictions. In this Article, we elaborate on crypto-related enforcement and report on the results of the Enforcement Survey conducted by the Rutgers Center for Corporate Law and Governance Fintech and Blockchain Research Program.
We find that the United States Securities and Exchange Commission (“SEC” or “Commission”) brings more enforcement actions against digital-asset issuers, broker-dealers, exchanges, and other crypto-market participants than any other major crypto-jurisdiction. By the same token, its enforcement entails more serious penalties. In addition to reviewing the international data, we provide detailed comparisons of the crypto-enforcement actions of the United States Commodity Futures Trading Commission (“CFTC”) and the crypto-enforcement program of the SEC. Whereas SEC enforcement has been relatively stable, CFTC cases have been trending up. By contrast, enforcement in foreign jurisdictions seems to be subsiding. Our data raise theoretical questions on regulation via enforcement, its effect on financial innovation, and regulatory competition.
In Part I, we start with discussing the pros and cons of regulation by enforcement, as well as its consequences for innovation and a possible outflow of capital. Part II describes the methodology of the research. Part III presents the main findings. Parts IV and V discuss SEC and CFTC enforcement data, respectively, while Part VI compares the enforcement actions of the two regulators.
When a student misbehaves, race plays a role in how harshly the student is disciplined. Given the long history of racial discrimination in the United States, as well as prevalent implicit biases, Black and Latino students are disciplined at higher rates with stiffer punishments than their white peers. This higher level of discipline leads to a downward spiral of poor school performance and attendance, involvement in illegal activity, and arrest and imprisonment. Ultimately, Black and Latino students fall victim to a school-to-prison pipeline that many white students are not pushed into despite similar misbehavior. In order to protect students from the pipeline, equalize educational opportunities, and create a safe and welcoming school environment, it is necessary for the federal government to invalidate disciplinary policies that cause an unjustified, disparate impact.
Under President Obama, a first-ever policy guidance on student discipline was issued, which stated that not only are intentionally discriminatory policies unlawful per Title VI of the Civil Rights Act of 1964, but so too are facially neutral policies that cause an unjustified disparate impact. The Trump Administration rolled back the policy guidance, citing that a disparate impact policy is not a Title VI violation per current precedent and that invalidating disparate impact disciplinary policies makes schools less safe and more prone to shootings. This Note will examine those arguments and will conclude that the disparate impact standard is supported by current precedent, does not increase the rate of school shootings, and ultimately should be reinstated. The disparate impact standard is a necessary safeguard against negative, implicit attitudes and is an important step in eradicating the school-to-prison pipeline.
Postscript | Administrative LawThe Supersecretary in Chiefby Kathryn E. Kovacs* Vol. 94, Postscript (November 2020)94 S. Cal. L. […]
Postscript | Constitutional LawOn the Imperative of Civil Discourse: Lessons from Alexander Hamilton and Federalist No. 1by Donald […]
In this short essay, in the spirit of offering general concerns about corpus analysis and legal interpretation, we largely focus on Lee and Mouritsen’s efforts in addressing the above issues.6 We argue that Lee and Mouritsen’s conceptualization of the potential role for corpus linguistics within legal interpretation is inadequate and underestimates the difficulty of judicial adoption of corpus analysis methods. Corpus analysis can provide useful information about the functioning of language, but it is crucial to neither understate the role of context in determining statutory meaning nor overstate the potential contribution of corpus analysis to legal interpretation.
This is a perfect juncture for analyzing 2021 federal judicial clerkships. Many aspirants recently finished half of their legal education. Six appeals courts’ members have agreed to honor a new Federal Law Clerk Hiring Plan (hereinafter referred to as “the pilot”) that is currently in its second year. The pilot directly proscribes seeking and permitting clerkship applications and recommendation letters until June 15, 2020 and prohibits student clerkship interviews and judicial offers before June 16, 2020.1 However, certain judges within these six tribunals will not respect the pilot during its second year, even though jurists in the seven remaining courts of appeals might follow the new plan. The Administrative Office of the United States Courts (“AO”) extended 2L students OSCAR access in February while suspending in January 2014 the 2003 clerk hiring plan—whereby 3L employment began near Labor Day—and judges will soon consider aspirants. Clues offered below may assist prospects in securing the coveted positions which start in 2021.
This Article examines these questions through the lens of United States v. Hoskins, a recent Second Circuit case. Part I will provide background: Section I.A will discuss the circumstances that compelled Congress to pass the original FCPA, the FCPA’s subsequent amendments, and the controversy surrounding U.S. enforcement of the FCPA. Section I.B will provide a basic background of accomplice liability, the Gebardi principle, and subsequent interpretations of the Gebardi principle. Section I.C will briefly explain the presumption against extraterritoriality. Section I.D will provide a synopsis of Hoskins. Part II will argue that, as a matter of statutory interpretation and policy, the government should be allowed to prosecute accomplices to FCPA violations, even when they are beyond the extraterritorial reach of the FCPA’s principal liability. Section II.A will argue that the Hoskins Court misapplied the Gebardi principle and the presumption against extraterritoriality and that, as a matter of statutory interpretation, accomplice liability’s extraterritorial reach extends beyond those who can substantively violate the FCPA. Section II.B will argue that principles of international law allow the U.S. government to prosecute Hoskins. Section II.C will argue that expanded accomplice liability is necessary as a matter of policy. The conclusion will recommend that the Supreme Court take action and hold that accomplice liability is extended to foreign nationals that conspire with principal offenders of the FCPA, even if they cannot be held liable as principal offenders. It will also recommend that, in the absence of a Supreme Court decision, Congress should explicitly expand accomplice liability’s extraterritorial reach beyond the FCPA’s principal liability.
This Note will explain the constitutionality and legal scope of the executive order as a political tool of the president. It will then discuss the rise of nationwide injunctions and the judicial system’s changing attitudes toward such injunctions as a viable judicial tool. Next, it will explain the series of executive orders passed by President Donald Trump—which together constituted the Muslim ban—and the nationwide injunctions issued by district courts in response to these orders, culminating in the Trump v. Hawai’i Supreme Court decision. Finally, it will discuss the legislation for which Trump v. Hawai’i paved the way: The Injunctive Authority Clarification Act of 2018, which sought to prohibit courts from issuing nationwide injunctions.
Ultimately, this Note will argue that Trump v. Hawai’i was decided correctly, but that the consequences of the decision as they relate to expanding executive power and the case’s procedural history have serious implications for the future of judicial lawmaking. This Note will critically analyze arguments on both sides of the issue of whether nationwide injunctions should be prohibited. Additionally, this Note argues that while nationwide injunctions have positive effects, those effects are outweighed by the incentives they create for forum shopping and the judicial territorial clashes they create that undermine judicial decisionmaking. Finally, this Note argues that prohibiting nationwide injunctions entirely, as the Injunctive Authority Clarification Act would have done, is not the proper solution. Instead, nationwide injunctions should be limited in some way, such as allowing only district- or circuit-wide injunctions.