Articles
Transnational Corporate Law Litigation
William J. Moon | PDF
For nearly half a century, a federal statute colloquially referred to as the Alien Tort Statute has served as a pivotal battleground over whether corporations violating law abroad can be subject to civil suits in the United States. The statute has been used to bring hundreds of lawsuits against corporations involved in some of the most heinous human rights abuses and environmental catastrophes taking place in foreign nations. Recent Supreme Court cases, however, have sounded the death knell for the viability of future cases by restricting the extraterritorial reach of federal statutes.
This Article presents a case for deterring corporate lawbreaking abroad through U.S. corporate law. Unlike Alien Tort Statute cases, corporate governance suits brought by shareholders would frame corporate lawbreaking in foreign nations not as torts actionable under a federal statute but as fiduciary duty claims under state law against directors and officers for enabling U.S. corporations to violate foreign law. In presenting a blueprint for litigators to bring what can be conceptualized as transnational corporate law litigation, this Article clarifies how violations of foreign law—including human rights laws, labor laws, and environmental regulations—can trigger powerful fiduciary duty claims against directors and officers in the United States. These suits promise to deter corporate lawbreaking by provoking the judicial articulation of norms governing transnational business operations with vast implications for understanding the social responsibility of modern corporations.
Discretionary Immigration Detention
Mary Holper | PDF
Immigration detainees challenging immigration judges’ bond decisions are hitting a jurisdictional wall—federal courts are given license to ignore errors that immigration judges make in determining dangerousness and flight risk, because such decisions can be categorized as “discretionary.” This license comes from a 1996 amendment to the Immigration and Nationality Act that removed federal courts’ jurisdiction over discretionary decisions to detain for immigration purposes. Detainees’ important liberty interests are left to the whims of a single immigration judge, who determines bond under conditions representing an implicit bias minefield.
This Article explores the justifications for unreviewable discretion and for stripping federal court jurisdiction over immigration decisions and argues that none of these justifications are applicable when an immigration judge decides whether to detain a person pending their removal proceedings. The Article also suggests manners by which the judiciary can limit the reach of this jurisdiction-stripping statute to ensure that immigration detainees will not face an unclimbable wall when seeking federal court review of their bond decisions.
Notes
Caught in the Content Tornado: How to Protect Violent-Crime Trials From the Prejudicial Effects of Live Streaming
Katie Grace Frisbee | PDF
With the rise of social media use and true-crime consumption postpandemic, this Note argues that current court practices regarding cameras in the courtroom are insufficient to protect a defendant’s right to a fair trial. This Note focuses on the impact of live streaming violent-crime trials on social media and its consequences—specifically, the “content tornado” that it creates. The content tornado, a concept this Note introduces, refers to the whirlwind of fact, fiction, and opinion that emerges when violent-crime trials are live streamed on social media. This concept describes how live streamed trials generate emotional and moralized content that gets amplified by social media algorithms. The emotional nature of violent-crime trials—fueled by anger, grief, and public passion—draws viewers in, and as they engage with the content, they become more likely to produce their own secondary content on the subject. This user-generated secondary content—in the form of videos, comments, and posts—amplifies the tornado and mixes accurate information with misinformation, exaggerations, and public biases.
As the content tornado gains momentum, it creates an atmosphere like a “Roman circus” or “Yankee Stadium,” where the public spectacle overshadows the trial’s goals of delivering justice and maintaining the presumption of innocence. This phenomenon undermines the fairness of the trial by turning it into sensationalized entertainment, potentially biasing the jury and the public against the defendant, thus violating their right to a fair trial. By analyzing landmark cases and the effects of modern media, this Note proposes a multifaceted solution, advocating for delayed trial coverage to preserve a defendant’s constitutional rights while maintaining public access to courtroom proceedings. This balance aims to mitigate the adverse effects of real-time media amplification and ensure fair judicial outcomes.
Hell Comes with High Water: Hurricanes, Climate Change, and Louisiana’s Dire Warning About the Erosion of Our Speedy Trial Right
Robert F. Cerise | PDF
The Sixth Amendment Speedy Trial Clause purportedly protects against undue delays in criminal cases. In order to obtain relief for a speedy trial violation, a defendant must show that a delay has lasted so long as to trigger the four-factor test in Barker v. Wingo (1972). Over time, however, states have codified procedural barriers to this speedy trial analysis. Simultaneously, courts have eroded Barker itself, namely by excusing “neutral” delays and by shifting the burden of proving prejudice resulting from such delays onto defendants. Louisiana is a particularly egregious example of these concerning trends, partly because hurricanes regularly disrupt the state’s criminal legal system, generating a large number of speedy trial claims. Especially as climate change increases the frequency and intensity of natural disasters countrywide, Louisiana’s treacherous laws and flagrant manipulation of Barker serve as a dire warning: We must restore speedy trial protections nationally. Using Louisiana as a case study, and drawing parallels to Florida and Texas, this Note identifies possible legislative and judicial solutions.