Law Commons^™

Does It Take Four To Tango In The Regulatory Competition For Global Listings? Comparing Regulations On Dual Class Shares Among Singapore, Hong Kong, Mainland China, And Taiwan, Chang-Hsien Tsai, Luke Hung-Yu Chuang, Hui Wang

Northwestern Journal of International Law & Business

We provide a comparative analysis of regulatory competition among Singapore, Hong Kong, Mainland China, and Taiwan regarding the process, purpose, and actual results of deregulating Dual-Class Share (“DCS”) structure. The comparative analysis focuses on the role of regulatory competition in the convergence or divergence of DCS-structure regulations. To attract unicorn companies and China Concept Stock (“CCS”) companies to choose public offerings in regional exchanges, Hong Kong, Singapore, and Mainland China sequentially announced their amendments to listing rules, particularly in 2018, to allow public offerings of DCS-structure companies while considering their preference for the ownership structure of unicorns. We employ theories …

The Independence And Impartiality Of The Court Of Arbitration For Sport, Gianna Flammini

Northwestern Journal of International Law & Business

This paper discusses the structure of the Court of Arbitration for Sport (CAS) and its process for adjudicating disputes by looking through the lens of the recent Jordan Chiles case. The intertwined history of CAS and the International Olympic Committee, CAS’s lack of structural independence, its policies that strongly favor one side in disputes, and its lack of sufficient conflict of interest procedures demonstrate that CAS is a flawed arbitral body that does not properly safeguard the interests of athletes. The landmark European Court of Human Rights case, Case of Mutu and Pechstein v. Switzerland, ruled that CAS was sufficiently …

The Failings Of Post-War Japanese Antitrust Reforms, Gregory Hayes

Northwestern Journal of International Law & Business

This paper discusses the antitrust reform measures taken during the occupation of Japan following the end of World War II. These antitrust reforms included the dissolution of the zaibatsu business groups and the adoption of the Antimonopoly Act. However, the trust-busting and antitrust measures taken by Japan failed to prevent the eventual rise of keiretsu business groups and lower the concentration of corporate ownership in Japan. The primary reasons behind this failure were the inability of the reformers to fully dismantle the zaibatsu business groups and the changing priorities of the reformers due to the growing threat of the spread …

Sex Crimes And Progressive Prosecution: Reimagining Sex Offenses And Sorn Laws As An Opportunity For Criminal Justice Reform, Kana Turley

Journal of Criminal Law and Criminology

As progressive efforts to reform the U.S. criminal legal system continue to take form, one category of crime has been consistently overlooked: sex offenses. While the carceral system is often condemned for its excessive punitiveness, severe punishments for sex offenders remain largely unchallenged and even popular. A primary example of these punishments is sex offender registration and notification (SORN) laws, which significantly constrain the lives of sex offenders after they have served their time in prison. Though subject to decades of empirical criticism from scholars, much of which has found that SORN laws have no significant impact on sex offender …

The 'Realness' Key To Compelled Passcode Production, Gabriel Pell

Journal of Criminal Law and Criminology

This Article explains how the Foregone Conclusion exception to the Fifth Amendment’s privilege against self-incrimination applies to compelled passcode production. The Supreme Court fashioned the Foregone Conclusion exception in connection with the compelled production of documentary evidence. It facilitates government access to real evidence despite the implicit factual communications inherent in a target’s act of producing it (i.e., that the real evidence exists, is accessible, and is what the state demanded). Engaging with the ‘real evidence’ limitation for compelled acts of production, the Article shows that focusing on unlocked devices and/or stored passcodes as the real evidence to be produced …

The State[S] Of Confession Law In A Post-Miranda World, Eve B. Primus

Journal of Criminal Law and Criminology

Police interrogators often use lies, threats, subterfuge, and psychological pressure to coerce vulnerable suspects to speak. These tactics produce false confessions, contribute to racial injustice, and undermine the legitimacy of the criminal process. Despite a documented need for better regulation, theU.S. Supreme Court has watered down constitutional protections in the interrogation room, signaling its intent to delegate most regulation of police interrogation practices to the states. Reformers and scholars must think about how best to push states to fill the void left by the absence of federal oversight.

This Article catalogues four different state approaches to regulating confession law: procedural …

Ending The Presumption Of Reasonableness And Using Data To Reduce Sentencing Disparities, Brandon Mordue

Journal of Criminal Law and Criminology

The idea that one’s punishment should depend on the crime committed rather than which judge happens to do the sentencing strikes most as uncontroversial, if not a requirement for a fair sentencing regime. Forty years ago, the passage of the Sentencing Reform Act promised just that result. Increased data availability allows us to evaluate the project’s success. The results are not encouraging.

Federal defendants are sentenced using guidelines issued by the United States Sentencing Commission that sometimes bear little relation to the underlying wrongdoing. This has created a split among judges, with some following the guidelines and others rejecting them. …

Police Misconduct: Combatting The Complicity Crisis, Eric Arnold

Journal of Criminal Law and Criminology

This Comment explores the current state of police reform in the city of Chicago, with a special focus on the various oversight agencies currently in force. Chicago has a long history of police misconduct, and the city has tried to make changes over the years to restore the community’s trust in policing. The police reform movement became especially prevalent in recent years following the fatal shooting of Laquan McDonald by a Chicago Police Officer in 2014. This Comment will show why the current mechanisms in place are insufficient to bring the needed change to the Chicago Police Department, and that …

Yet Another Elected Power: A Case For Randomly Selected Forepersons, Cj Miller

Journal of Criminal Law and Criminology

Most United States courts require the jury to elect their own foreperson, a role that has amplified influence on the jury’s verdict. In practice, the election process is done quickly and without discussion. As a result, the foreperson is demographically biased toward older men of high socioeconomic status. This paper uses psychological literature to argue that the current selection system produces suboptimal forepersons. Instead, it proposes a system of random selection, including an opt-out procedure for those who do not feel capable of holding the position.

Minimal Rationality And The Law Of Evidence, Ronald J. Allen, Michael S. Pardo, William J. Lawrence, Christopher K. Smiciklas

Journal of Criminal Law and Criminology

For more than a century, one of the pillars upon which the law of evidence was thought to rest is that the primary (although by no means exclusive) objective of the law of evidence is to further accurate fact-finding by maximizing the rationality of the evidentiary process. The crux of this pillar is that the law of evidence increases rationality (and thereby increases accuracy) through admissibility rules that (1) require reliable evidence, and (2) behave paternalistically toward jurors and their cognitive abilities. This Article aims to supplant this pillar by showing that the law of evidence pursues minimal, not maximal, …

Justice Ginsburg's Criminal Justice Legacy: Fair Tribunals, Fair Punishment, Sandra Guerra Thompson, Samantha Medlin

Journal of Criminal Law and Criminology

Scholars have written much about Supreme Court Justice Ruth Bader Ginsburg’s legacy in many areas of law, but her criminal justice legacy has yet to be fully articulated, likely because she penned few important opinions in this field. This article argues that Justice Ginsburg had an enormous impact across a large area of criminal justice cases decided by the slimmest majority. We explore these close cases and, in so doing, we show her to have played a crucial role in a remarkable number of landmark cases that extended important constitutional protections to criminal defendants. Specifically, she joined the majorities in …

Crimes Without Law: Administrative Crimes And The Nondelegation Doctrine, Nicolas Elliott-Smith

Journal of Criminal Law and Criminology

The future of the nondelegation doctrine is clouded with uncertainty. Despite the Supreme Court’s insistence that the nondelegation doctrine is an axiom of constitutional law, the doctrine remains an illusory constraint on Congress. Indeed, almost a century has passed since the Court invalidated a congressional delegation under the nondelegation doctrine. But several Justices appear eager—or at least willing—to revive the nondelegation doctrine.

This Comment charts an originalist path forward. It primarily argues that the original meaning of legislative power restrains Congress from delegating legislative authority to write criminal law. The constitutional enactors believed that core private rights—to life, liberty, and …

Towards A Federalism(S) Framework Of Punishment, Sheldon A. Evans

Journal of Criminal Law and Criminology

Federalism and its impact on criminal punishment is foundational to understanding the failures of mass incarceration. Scholars studying the negotiation of power between the federal and state governments have highlighted the increase of cooperative agreements that allow these levels of government to accomplish mutually beneficial outcomes for their overlapping constituencies. In the context of criminal punishment, however, such cooperation has devolved into a race to the bottom in a bipartisan push to punish. Consequently, the modern cooperative era of federalism has facilitated mass incarceration in many respects as a policy vehicle to accomplish a national tough-on-crime agenda.

This Article argues …

Military Justice: The Forgotten Jurisdiction In Capital Punishment, Erica C. Medley

Journal of Criminal Law and Criminology

The military capital punishment scheme for murder in peacetime is unconstitutional. It does not meet the Eighth Amendment’s requirement of heightened reliability for capital cases because it fails to include a trial by jury. The Supreme Court identified concerns about court-martial panels compared to juries in Reid v. Covert and United States ex rel. Toth v. Quarles. These concerns are exacerbated by the research from the Capital Jury Project regarding how the race and gender of jurors can affect capital sentencing determinations. Specifically, as the number of white males increases on a jury, the likelihood of a death sentence increases. …

Sentencing Insurrection, Kevin Lapp

Journal of Criminal Law and Criminology

On January 6, 2021, an estimated two thousand people broke police lines and breached the U.S. Capitol building in an effort to prevent the certification of the 2020 presidential election results. Over one thousand people have been charged with various crimes for their actions that day, from misdemeanor trespassing charges to felony assault with a weapon and seditious conspiracy. Relying on publicly available sources, this Article presents results from an analysis of the first 514 people to have been sentenced in federal court for crimes committed on January 6. The result is a snapshot of the insurrectionists, the charges they …

The Unknowns Of The Knowledge Requirement: Revisiting The Deliberate Indifference Standard In Prisoner Healthcare, Malina J. Simard-Halm

Journal of Criminal Law and Criminology

In the 1976 decision Estelle v. Gamble, the Supreme Court held that “deliberate indifference” to significant health needs of prisoners violated the Eighth Amendment. The standard’s knowledge requirement, however, ensured that prisoners were not guaranteed healthcare under the constitutional standard; rather, the constitutionality of healthcare in prisons would be tethered to the mental state of prison officials. This Article seeks to demonstrate that correctional standards of healthcare occupy an incoherent space in constitutional law. By analyzing the legal standard and the application of the knowledge requirement, this Article exposes the theoretical inconsistency and inadequacy of the deliberate indifference standard—and …

Proof Beyond A Reasonable Doubt Doesn't Exist: Except As An Emergent Property Of A Complex Adaptive System, Ronald J. Allen, Nicolas Elliott-Smith

Journal of Criminal Law and Criminology

The pursuit of knowledge is undergoing a transformation. Scientists and scholars are rejecting standard reductionist efforts, popularly captured by “the scientific method” and embracing the framework of complexity theory and complex adaptive systems. That framework is invaluable to understand both the law of evidence and the nature of Anglo-American legal systems. It also has significant implications for the ongoing debate over the concept of law. This Article demonstrates how “proof beyond a reasonable doubt” (BARD) does not exist in any knowable form, except as an emergent property of a complex adaptive system—the criminal process. First, what constitutes BARD will vary …

Probation Without A Home: How Probation Maintains Barriers To Successful Completion While Homeless, Olivia K. Babin

Journal of Criminal Law and Criminology

Following the Supreme Court’s decision in Grants Pass v. Johnson, national attention is being brought to discussions about the criminalization of homelessness and the experiences of homeless people in the criminal legal system. Community supervision (probation and parole) is an oft-forgotten portion of the criminal justice system, despite there being nearly triple the number of people on parole or probation than the number of people incarcerated in the United States. Probation specifically is seen as an alternative to incarceration. Some view it as a more humane punishment than incarceration; others believe probation is far too lenient and sentenced too often. …

Institutional Structures Of Penal Inequality, Alexandra Natapoff

Journal of Criminal Law and Criminology

The U.S. penal apparatus is a bundle of wildly divergent practices. Police in some cities use more force than others. Prosecutors in some jurisdictions file charges automatically while others screen carefully. Public defenders in some counties lack zeal while others provide high quality representation. Offices that share the same name and perform the same basic legal functions—“police,” “prosecutor,” “public defender,” “criminal court”—actually operate according to highly disparate legal, professional, and normative standards. These differences give rise to a stratified criminal process in which a minority of defendants and cases are handled lawfully with attention and care, while a much larger …

Humanizing The Mexican Migrant, April Guevara Espinoza

Northwestern Journal of Law & Social Policy

Given the past election season and craze about the “immigration crisis,” it is of paramount importance to reflect on how and why migrants, particularly Mexican migrants, are positioned as “less than” in our society. Immigration is more than a political platform issue; it concerns real people whose real lives are affected. Mexican migrants are used as political scapegoats for any and all issues in the United States whether it be increased crime rates, a lack of available jobs, or overall poor economic conditions. They are dangerously mischaracterized and stereotyped as “criminals” and “national security threats.” These labels are inextricably tied …

Earned Wage Access: A Loan By Any Other Name?, Matthew Johnson

Northwestern Journal of Law & Social Policy

Over the past decade, a new financial product called earned wage access (EWA) has emerged and is being marketed to workers. These products allow workers to access wages they have already earned but have not yet received in a paycheck, usually incurring a fee for the advance. While the companies selling these products claim to financially empower workers who live paycheck to paycheck, consumer advocates have noted EWA’s concerning similarities to payday lending. As EWA use has proliferated, regulators have begun addressing it head on. The primary debate is whether to consider these products loans subject to federal and state …

A Puerto Rico For Whom? Race, Neglect, And Empire, Ediberto Román, Ernesto Sagás

Northwestern Journal of Law & Social Policy

This article examines the persistent colonial relationship between the United States and Puerto Rico, highlighting the paradox of a nation that champions democracy while maintaining colonial rule over millions of disenfranchised citizens. Over 120 years of exploitation, neglect, and subordination have shaped Puerto Rico’s status as the largest U.S. territory, where residents live in stark inequality compared to those on the mainland. Despite the veneer of sovereignty created by the U.S. through legal frameworks, Puerto Rico exemplifies a sophisticated and undemocratic form of modern colonialism, recently termed "new legal colonialism." This approach uses legal structures to maintain economic and strategic …

The Promise Of Lived Experience: Assessing Race And Merit After Sffa, Taonga Leslie, Claire Comey

Northwestern Journal of Law & Social Policy

70 years after Brown, students of color remain underrepresented in U.S. colleges and universities and in professions like law, medicine, business, and academia, which, in turn, drives inequitable social and economic outcomes. Recent Supreme Court decisions threaten to further exacerbate this inequity by preventing schools from considering race when making admissions decisions and shaping their classes. This article contends that by placing greater emphasis on applicants’ experiences of race, admissions officers can more accurately assess merit, improve services to disadvantaged communities, and achieve the pedagogical benefits of diversity. The article situates the lived experience approach within a well-established tradition permitting …

“All They Did Was Change The Name”: Evaluating Reforms To Solitary Confinement, Laura Mcfeely

Northwestern Journal of Law & Social Policy

In the last decade, the United States has seen a wave of efforts to greatly reduce or eliminate the use of solitary confinement. In the light of growing international recognition that such treatment amounts to torture, these efforts are certainly encouraging and have contributed to a reduction of the number of people held in long-term isolation. But it is worthwhile to examine the extent of these reforms and what solitary confinement now looks like in states that have implemented such changes.

A robust literature exists on the harms of solitary confinement and ideas for reforming or eliminating its use. This …

Dismantling The Dogma Of Dot: A Human Rights-Based Review Of Directly Observed Therapy For Tuberculosis, Brian Citro, Dr. Jennifer Furin, Rhea Lobo, Ingrid Schoeman, Timur Abdullaev, James Malar

Northwestern Journal of Human Rights

The global tuberculosis (TB) response is at a crossroads. In recent years, new ideas, technologies, and political commitments have reinvigorated the fight against this age-old disease that kills more people each year than HIV and malaria combined. But with key indicators just beginning to recover after moving in the wrong direction during the COVID-19 pandemic, hard-earned gains are at stake. In this rejuvenated yet challenging context, we critically review an idea and practice at the heart of the TB response—directly observed therapy or DOT. First, we explore DOT’s controversial method and history as a component of the World Health Organization’s …

The Off-Grid Revolution And The "Promise" Of Energy Equality Under The Paris Climate Change Agreement, Ilias Bantekas

Northwestern Journal of Human Rights

A key thesis of this article is that since renewable energy is quintessentially a public good both in constitutional and macroeconomic terms, its availability without restrictions to all people is a true manifestation of economic self-determination, ultimately entailing what this author calls “energy equality.” Although this equality is dictated by the nature of renewable energy as a public good, it risks being eroded by the rush to implement the Paris Agreement. This is certainly one of the shortcomings of the Paris Agreement. With nation states eager to meet their targets and energy concessionaires given unprecedented financial and other incentives, we …

Attributing Ai Authorship: Towards A System Of Icons For Legal And Ethical Disclosure, Joseph J. Avery, Patricia Sánchez Abril, Alissa Del Riego

Northwestern Journal of Technology and Intellectual Property

Over the past year, the pervasive role of large language models (LLMs) and artificial intelligence (AI) in text generation has precipitated concerns about ethical usage, authorship, and transparent attribution. This has been true in legal practice, academia, and the corporate world, as well as in countless other arenas. In this Article, we identify the gap that has opened between those demanding proper disclosure (we should know when and to what extent AI is an author) and those struggling to respond to these demands. Part of the problem is that there is no system in place, no lingua franca, no set …

Regulating Chatbot Output Via Inter-Informational Competition, Jiawei Zhang

Northwestern Journal of Technology and Intellectual Property

The advent of ChatGPT has sparked over a year of regulatory frenzy. Policymakers across jurisdictions have embarked on an AI regulatory “arms race,” and worldwide researchers have begun devising a potpourri of regulatory schemes to handle the content risks posed by generative AI products as represented by ChatGPT. However, few existing studies have rigorously questioned the assumption that, if left unregulated, AI chatbot’s output would inflict tangible, severe real harm on human affairs. Most researchers have overlooked the critical possibility that the information market itself can effectively mitigate these risks and, as a result, they tend to use regulatory tools …

Between Copyright And Computer Science: The Law And Ethics Of Generative Ai, Devin R. Desai, Mark Riedl

Northwestern Journal of Technology and Intellectual Property

Copyright and computer science continue to intersect and clash, but they can coexist. The advent of new technologies such as digitization of visual and aural creations, sharing technologies, search engines, social media offerings, and more, challenge copyright-based industries and reopen questions about the reach of copyright law. Breakthroughs in artificial intelligence research, especially Large Language Models that leverage copyrighted material as part of training, are the latest examples of the ongoing tension between copyright and computer science. The exuberance, rush-to-market, and edge problem cases created by a few misguided companies now raises challenges to core legal doctrines and may shift …

Fair Use, Licensing, And Authors' Rights In The Age Of Generative Ai, Celeste Shen

Northwestern Journal of Technology and Intellectual Property

The rise of generative AI technologies has introduced unprecedented challenges to copyright law, particularly around the fair use of copyrighted works in AI training processes. Generative AI tools, such as ChatGPT, are trained on vast datasets that often include copyrighted material, typically without the consent of authors or compensation for use. This widespread, unauthorized use has led to legal disputes, with plaintiffs asserting that using protected texts in training AI models constitutes copyright infringement. This Note examines the application of the fair use doctrine to generative AI, analyzing each of the four statutory factors to demonstrate that generative AI’s commercial …