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Ann Piccard, Death by Boarding School: “The Last Acceptable Racism” and the United States’ Genocide of Native Americans, 49 Gonz. L. Rev. 137 (2013)Clicking on the button will copy the full recommended citation.
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Royal C. Gardner, International Environmental Law, 47 American Bar Association Section of International Law Year in Review 435 (2013)Clicking on the button will copy the full recommended citation.
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Elizabeth Berenguer, In Defense of Scholarship, 27 Second Draft 4 (2013)Clicking on the button will copy the full recommended citation.
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Ciara Torres-Spelliscy, Taking Opt-In Rights Seriously: What Knox v. SEIU Could Mean for Post-Citizens United Shareholder Rights, 74 Mont. L. Rev. 101 (2013)Clicking on the button will copy the full recommended citation.
This article will explore the implications of the Supreme Court’s disparate treatment of similarly-situated, politically active corporations and unions. Two paths lead to more equitable treatment of these two groups: either (1) corporate political speech should be regulated more or (2) union political speech should be regulated less. This piece argues in favor of the former. In particular, corporate political spending lacks the transparency and consent mechanisms present in union political spending. Policymakers should address both of these failings in the corporate context.
The Roberts Supreme Court’s asymmetrical treatment of corporations and unions was on full display in the 2011–2012 term. American Tradition Partnership, Inc. v. Bullock coupled with Knox v. Service Employees International Union, Local 1000 demonstrates that a double standard persists between corporations, who are now privileged speakers in the Court’s eyes, and unions, who are currently disfavored speakers. The Supreme Court imposes different degrees of consent from corporations’ and unions’ constituent parts before they electioneer. Under U.S. law, corporations are not required to get consent from their shareholders before the corporate entity speaks politically using corporate funds. By contrast, public-sector unions must receive nonmembers’ consent before political spending in certain circumstances.
With the Supreme Court unlikely to change legal positions on this issue until the Court’s composition itself changes, the responsibility to foster more equitable regulations for corporations is left to the American electorate, Congress, the States, and executive agencies, such as the Securities and Exchange Commission (“SEC”), which must work within the boundaries of current precedent. The Supreme Court’s ruling in Knox requiring opt-ins for union political expenditures provides an additional basis for arguing that publicly traded American corporations should likewise marshal shareholder consent before corporate political expenditures are made.
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Peter Lake, The College ‘Court’ Phenomenon, NASPA's Leadership Exchange (2013)Clicking on the button will copy the full recommended citation.
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Roy Balleste and , Signs and Portents in Cyberspace The Rise of Jus Internet as a New Order in International Law, 23 Fordham Intell. Prop. Media & Ent. L.J. 1311 (2013)Clicking on the button will copy the full recommended citation.
Today, having sufficient access to the Internet's information has arguably become a prerequisite for the enjoyment of human life. The Internet has become a center for human literacy and has the potential to offer numerous kinds of instruction at lower costs and with higher quality than previous media could offer. This Article will argue that the concept of a "cybered Westphalian age," as a cure to all threats in the Internet, has the potential to do more harm than good. The international community is now faced with a possible policy shift from the current state of the Internet, which is one of shared knowledge, toward the active practice of censorship and filtered content, which will have devastating consequences.
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Ellen S. Podgor and Bruce Green, Unregulated Internal Investigations Achieving Fairness for Corporate Constituents, 54 B.C. L. Rev. 73 (2013)Clicking on the button will copy the full recommended citation.
This Article focuses on the relationship between corporations and their employee constituents in the context of corporate internal investigations, an unregulated multi-million dollar business. The classic approach provided in the 1981 Supreme Court opinion, Upjohn v. United States, is contrasted with the reality of modern-day internal investigations that may exploit individuals to achieve a corporate benefit with the government. Attorney-client privilege becomes an issue as corporate constituents perceive that corporate counsel is representing their interests, when in fact these internal investigators are obtaining information for the corporation to barter with the government. Legal precedent and ethics rules provide little relief to these corporate employees. This Article suggests that courts need to move beyond the Upjohn decision and recognize this new landscape. It advocates for corporate fair dealing and provides a multi-faceted approach to achieve this aim. Ultimately this Article considers how best to level the playing field between corporations and their employees in matters related to the corporate internal investigation.
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Ashley Krenelka, Put Your Library on the Map, Part 2: The Waiting Game, AALL Spectrum Online (2013)Clicking on the button will copy the full recommended citation.
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Elizabeth Berenguer, Gideon’s Legacy: Taking Pedagogical Inspiration from the Briefs that Made History, 18 Barry L. Rev. 227 (2013)Clicking on the button will copy the full recommended citation.
In honor of the fiftieth anniversary of the Gideon decision, this article guides the rhetorical study of the party briefs as a strategy for cultivating individual voice in legal writing. It is a rhetorical study of the party briefs filed in Gideon v. Wainwright, a 1963 U.S. Supreme Court decision establishing the constitutional right to counsel in state criminal proceedings and provides specific lessons to be used in the classroom setting to enhance students’ understanding of advanced persuasive techniques such as logos, ethos, pathos, and storytelling. Each lesson has been created through the lens of cognitive theory, in particular the concept of categories as organizers of perception. This article proposes that categories can either be reinforced or redefined to accomplish rhetorical purposes, and having a meta-cognitive understanding of that power is essential effective advocacy.
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Ciara Torres-Spelliscy, Safeguarding Markets from Pernicious Pay to Play: A Model Explaining Why the SEC Regulates Money in Politics, 12 Conn. Pub. Int. L.J. 361 (2013)Clicking on the button will copy the full recommended citation.
At first blush, the SEC’s regulation of money in politics may seem to fall outside of its jurisdiction, but this is a mistake. This view ignores three previous times when the SEC stepped in to curb pay to play: (1) in the municipal bond market in 1994; (2) in the public pension fund market in 2010; and (3) in investigating questionable payments post-Watergate from 1974 to 1977. The result of the first two interventions led to new Commission rules and the third intervention resulted in the Foreign Corrupt Practices Act (a federal statute).
When these three previous SEC interventions into the role of money in politics are examined, a principled model emerges for when the Commission’s regulatory intervention is appropriate. The principled model, hereinafter known as the “Money in Politics Model,” has the following characteristics: there must be (1) a potential for market inefficiencies; (2) a problem that is not likely self-correct through normal market forces; (3) a lack of transparency; (4) a material amount of aggregated money at stake; and (5) a high probability for corruption of the government.
The Money in Politics Model’s characteristics were present in the all three past SEC interventions. As will be explained in more detail below, in the municipal bond market and public pension funds, there was an endemic problem of pay to play between state elected officials and businesses eager to contract with them for lucrative fees. The post-Watergate investigation revealed even more profound problem of secret corporate funds used for political contributions domestically and bribes of foreign officials abroad.
So does the post-Citizens United world of corporate political spending rise to the same level as these three previous examples? Does post-Citizens United political spending fit the SEC’s Money in Politics Model and merit the SEC’s intervention? This article will argue that the Model fits and the SEC should act.
The SEC is not new to the inherent conflicts of interest between business and government, especially when elected officials have the ability to make private contractors in the financial services industry rich through commissions and fees. The risk of corruption is intrinsic in such a situation. Here corruption is best captured by the definition as “the misuse of public…office for direct or indirect personal gain.” What is new as of January 2010, thanks to Citizens United, is the potential for every publicly traded company to try to influence the government not just through traditional lobbying, but also through campaign expenditures. This new problem merits a new SEC intervention to reveal the campaign activities of public companies.