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April 19, 2022 0

We Need an Afghan Adjustment Act

(Source) This article originally appeared in the New York Daily News on Apr 9, 2022. Since the fall of the Afghan government in August 2021, the United States’ treatment of our Afghan allies has fallen short of anything humane. Now, while the world’s attention justifiably turns to the devastation in Ukraine, the recent more favorable treatment of Ukrainian refugees highlights how the United States has unacceptably failed our Afghan allies. During the U.S. military’s withdrawal from Afghanistan and the Taliban takeover, the U.S. military evacuated around 123,000 people from Afghanistan. The U.S. military brought 83,000 of these Afghans into the United States. Others were taken to third countries. These evacuated individuals were our allies in Afghanistan. They supported and joined the U.S. military’s work in the country and worked for American NGOs. They stood with us against the Taliban, putting their lives at risk. Before evacuating these allies, the U.S. vetted them and identified them as being at risk of harm from the Taliban. While those evacuated from Afghanistan were lucky to make it out of the country alive, this sudden departure from their homeland was nonetheless a traumatic experience. Many fled without getting to say goodbye to their loved [read more]
March 15, 2022 0

Reforming Stock Trading Inside the Beltway

(Source) Insider trading carries with it the possibility of civil and criminal penalties for members of the general public. Yet, members of Congress have enjoyed freedom from punishment for engaging in the misappropriation of information they receive in the service of their jobs. The complex history of securities law is built upon case law which has failed to reach congresspersons due to the lack of a binding fiduciary obligation between them and the general public. The existing structure of representation—where legislators are expected to act in the best interest of their constituents—is irrelevant in the application of insider trading law to members of Congress. In order for there to be a binding obligation to refrain from engaging in insider trading, there must first exist a fiduciary duty between a trader and a communicator of material, nonpublic information. In the case of members of Congress, that relationship does not exist since their duties to the American people are based on representation as opposed to a fiduciary obligation.  This glaring loophole left open by case law has allowed some members of Congress to outperform the market, the general public and even some hedge fund managers for decades. This, along with the fact [read more]
December 6, 2021 0

Twin Crises – Abortion During Covid-19

(Source) Limited access to healthcare during the COVID-19 pandemic severely curtailed the ability of pregnant persons to access abortion services. At a time when abortion access was especially critical, mobility and quarantine measures were widely used as pretenses to delay services. Under the guise of protecting frontline workers, saving PPE kits, and allowing only essential medical services to continue, legislators imposed several crackdowns to restrict abortion that, in fact, had failed to address the concerns raised in the first place. Given abortion’s time-sensitive nature, this further exacerbated existing inequalities within society in terms of race and socio-economic status, and created a vacuum for essential services that were of utmost importance to basic health care.    I. Curtailing Abortion During a Pandemic   During the growing COVID-19 crisis, it became evident that the United States had a serious lack of PPE kits available for use while treating patients. To efficiently address the issue, several state governments announced a temporary halt of elective health care activities. Some states, like Alabama, issued a very basic executive order that asked people to postpone their elective health care procedures. Other states chose to define “elective” services, providing examples of procedures considered elective by the state, [read more]
May 17, 2021 0

Stockholders Rejoice: The Changing Landscape of Section 220 of the Delaware General Corporation Law

(Source) Delaware is king of the corporate world. More than half of all publicly traded companies on U.S. stock exchanges, including two-thirds of the Fortune 500, are incorporated under Delaware law; more than 300,000 of these companies, including corporate behemoths such as Coca-Cola and Verizon, list the same building as their address of incorporation. Though there is a robust body of scholarship exploring whether Delaware will be ousted from its throne of corporate dominance, the nation’s second smallest state remains, and will likely remain for the foreseeable future, the destination of choice for the vast majority of businesses seeking to incorporate in the United States.  Delaware likely would not maintain its position of corporate dominance were it not for the internal affairs doctrine. The internal affairs doctrine mandates that the internal affairs of a corporation—such as the way that a corporation’s shareholders vote on its board of directors—be governed by the laws of the state in which a corporation is incorporated. The judges who interpret the Delaware General Corporation Law (“DGCL”), the statute that sets the rules of corporate governance for the hundreds of thousands of corporations who call Delaware home, thus serve as some of the nation’s preeminent regulators [read more]
May 14, 2021 0

Optimizing Sports Gambling: A Case for Deregulating the Sports Gambling Industry

(Source) Sports gambling has existed in North America since 1665 when the first horse-racing track was opened. By the late nineteenth and early twentieth century, gambling became more prevalent as card rooms began to operate and many started gambling on boxing matches and baseball games. However, a series of scandals, such as the 1919 Black Sox baseball scandal and the point-shaving scandal at the City College of New York, and the rise of organized crime’s domination of the gambling market led sports leagues and federal legislators to attempt to prohibit sports gambling.  In 1920, Major League Baseball appointed its first commissioner, Judge Landis, in an attempt to restore the integrity of the game, and he banned from major league baseball for life the eight professional baseball players involved in the Black Sox baseball scandal. The federal government, on the other hand, passed the Federal Wire Act, which made it illegal to place bets or share information about them via wires across state lines. The federal government’s involvement with the sports gambling market culminated with the passage of the Professional and Amateur Sports Protection Act of 1992 (“PASPA”). PASPA banned states from sponsoring or authorizing any betting or gambling on competitive [read more]
May 10, 2021 0

Why Tuition Is Skyrocketing: An Inconvenient Truth

(Source) The costs of college tuition have perennially risen nationwide at rates higher than inflation, saddling millions of millennials and Generation Z’ers with exorbitant debts ranging from tens to hundreds of thousands of dollars. Vignettes about Generation X’ers paying student loans for decades are not uncommon and will likely continue for the younger generations. As if to mask the reality of the national student loan crisis, colleges and universities have downplayed the burdens they impose on students by pointing to lavish increases in financial aid. Yet seldom has such largess extended to all or even most students, at least not to the extent of paying for most of their education. America’s student-loan crisis demands analysis about the sources of burgeoning tuition costs and demands corresponding solutions. Universities often claim that tuition hikes are necessary to cover rising administrative, academic, and operational costs. The inconvenient truth behind redressing the student loan crisis, then, lies in chipping away at the bureaucratic leviathan that universities have created and reducing the number of nonacademic services universities provide students.  For instance, Harvard boasts 22,273 students and over 18,000 total employees but only a comparatively meager 2,259 professors and instructors. Thus, whereas the Ivy League school [read more]
May 7, 2021 0

360 Music Contracts, COVID-19, and the Future of the Music Industry

(Source) Since the turn of the century, music accessibility has quickly become greater than ever before, though listening formats have changed in popularity. As cassette tape sales waned in the 1990s, CDs became the most profitable format in the US. This trend continued through the late 2000s when CD use declined. Since 1999, falling music sales have been a consistent reality, due in no small part to newfound free, albeit illicit, access to music, offered by file sharing websites like Napster and the ever-reviving, peer-to-peer torrent site The Pirate Bay which at their peaks had sixty million and fifty million users, respectively, as well as Limewire. Piracy then blunted the growth of the music industry and not until recently did the industry’s financial outlook begin to improve. In 2016, streaming revenues represented 51% of the music retail industry’s revenue, overtaking CD, vinyl, and download sales combined. Streaming subscriptions that year drove an over 11% increase in total recorded music revenue to $7.7 billion, the largest such increase since 1998, though that sum is still only half of previous industry highs in 1999. The advent of streaming and its embrace by American music consumers shows no signs of stopping, with a [read more]
May 3, 2021 0

To the 117th Congress: Pass the FAIR Act

(Source) The right to a jury trial in civil actions, preserved by the Seventh Amendment to the United States Constitution, is quietly being eviscerated. As arbitration provisions have become fixtures within standard-form employment and consumer contracts, millions of individuals may no longer utilize courts to press a variety of civil actions, including medical malpractice, sexual harassment, and discrimination suits. Those individuals are forced to present their disputes before private arbitrators in relatively informal proceedings: arbitrators need not adhere to any rules of evidence and, unlike judges, they do not need to articulate the reasoning behind their awards.  Mandatory arbitration harms employees and consumers. According to Alexander Colvin, a professor of dispute resolution and dean of the Cornell University ILR School, arbitration tends to suppress employment-related claims because claimants are less likely to succeed in arbitration than they are in court and, when they do succeed, the awards are typically smaller than they are in court. Statistics suggest a similar plight for consumer-claimants. For example, according to a New York Times study, Verizon, which had more than 125 million customers as of 2015, faced only sixty-five consumer arbitrations between 2010 and 2014. Moreover, many arbitration provisions in consumer contracts contain class [read more]
April 30, 2021 0

Making Mandatory: Vaccines in the Workplace

(Source) According to the CDC’s COVID Data Tracker, after hitting a peak in early January 2021 of over 300,000 new American coronavirus infections in a single day, the number of new cases began falling precipitously over the ensuing months, with the seven-day moving average dropping to 56,000 by late March. Not coincidentally, COVID vaccination efforts in the same time frame have been ramping up—as of February 1, 2021, 32.2 million vaccines were administered in the U.S., with President Biden aiming to vaccinate 1.5 million more Americans each day. With over 200 million doses in under two months, the Biden administration’s original goal has been far exceeded, as 43% of Americans have already received at least one dose of the COVID vaccine as of the date of this writing. A consequence of the vaccination objective progressing at such an expeditious rate is that the overnight metamorphosis from in-person to remote work will likely begin to revert quickly as a number of large corporations, including Amazon, Apple, and Goldman Sachs, are expecting their workers to make a return to the office by midsummer.   While Facebook CEO, Mark Zuckerberg, has envisioned that half of the 48,000 employees at his company could be moving to [read more]
April 26, 2021 0

So, What Actually Is the Rule of Law?

(Source) Over the past year, public discourse increasingly cited the value of the rule of law. In response to the January 6 insurrection, then-President Trump claimed that “Making America Great Again has always been about defending the rule of law.” About a month later, President Biden remarked that one of “America’s most cherished democratic values. . . [is] respecting the rule of law.” What do public figures mean when they refer to the rule of law? Do they invoke the phrase in the same way they purport to know what “the American people” want, or does the idea connote much more than some amorphous optimism in our way of government. Modern legal philosophers such as Joseph Raz and F. A. Hayek have provided normative characterizations of what it means for the rule of law to govern a legal system. Raz, in particular, emphasizes that a society governed by the rule of law “must be capable of guiding the behavior of its subjects,” and identifies certain principles that derive from the rule of law, such as an independent judiciary and accessibility of courts. However, the concept boasts a history stretching back to Greek philosophers, and the ways in which the rule [read more]

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