The United States cash bail system unconstitutionally hinders protest rights enshrined in the First Amendment. Protesting on controversial issues, while protected activity, often risks arrests and other interactions with police. Unfortunately, studies show that protesters of color are arrested at higher rates than white protesters. Cash bail, in turn, increases the cost associated with the arrests related to protests, further disincentivizing protesters from engaging in lawful activity. Although the overwhelming majority of these protests and demonstrations are peaceful, and many of the charges in these arrests are eventually dropped, arrested protesters are still required to put up hundreds––sometimes even thousands––of dollars to be released pretrial. If they cannot, they must remain in jail until their trial, until the charges are dropped, or until they are able to raise enough money to be released. This pretrial detention, even if it only lasts a few days, has significant consequences. Furthermore, these consequences are not shared evenly: the cash bail system disparately impacts people of color, who are imposed bail at higher rates and at higher amounts, meaning they will also experience negative consequences at a disproportionate rate. Because states are criminalizing more conduct, elevating charges from misdemeanors to felonies, and continuing to impose bail amounts on protesters, the intersection between cash bail and protests is unavoidable. In turn, many people could be afraid to protest because they do not have enough money to afford their bail if they are arrested at the protest, and because they cannot afford the negative consequences of awaiting their trial in jail. This Article discusses how cash bail dissuades First Amendment expression by compounding existing consequences created by government action that also curtails lawful protests. Furthermore, the disparate rates at which protesters of color are arrested and later imposed bail raises an equal protection concern, deterring people of color from expressing constitutional rights. Removing cash bail in limited circumstances associated with otherwise lawful protesting, measured reform may help alleviate some of the disparate risks involved with protected activity. While eliminating bail altogether is the ultimate goal, this measured reform would be an incremental step towards broader change, building public support for holistic reform.
{"title":"Bailing out the Protester","authors":"Alireza Nourani-Dargiri","doi":"10.2139/ssrn.4629625","DOIUrl":"https://doi.org/10.2139/ssrn.4629625","url":null,"abstract":"The United States cash bail system unconstitutionally hinders protest rights enshrined in the First Amendment. Protesting on controversial issues, while protected activity, often risks arrests and other interactions with police. Unfortunately, studies show that protesters of color are arrested at higher rates than white protesters. \u0000Cash bail, in turn, increases the cost associated with the arrests related to protests, further disincentivizing protesters from engaging in lawful activity. Although the overwhelming majority of these protests and demonstrations are peaceful, and many of the charges in these arrests are eventually dropped, arrested protesters are still required to put up hundreds––sometimes even thousands––of dollars to be released pretrial. If they cannot, they must remain in jail until their trial, until the charges are dropped, or until they are able to raise enough money to be released. This pretrial detention, even if it only lasts a few days, has significant consequences. Furthermore, these consequences are not shared evenly: the cash bail system disparately impacts people of color, who are imposed bail at higher rates and at higher amounts, meaning they will also experience negative consequences at a disproportionate rate. \u0000Because states are criminalizing more conduct, elevating charges from misdemeanors to felonies, and continuing to impose bail amounts on protesters, the intersection between cash bail and protests is unavoidable. In turn, many people could be afraid to protest because they do not have enough money to afford their bail if they are arrested at the protest, and because they cannot afford the negative consequences of awaiting their trial in jail. \u0000This Article discusses how cash bail dissuades First Amendment expression by compounding existing consequences created by government action that also curtails lawful protests. Furthermore, the disparate rates at which protesters of color are arrested and later imposed bail raises an equal protection concern, deterring people of color from expressing constitutional rights. Removing cash bail in limited circumstances associated with otherwise lawful protesting, measured reform may help alleviate some of the disparate risks involved with protected activity. While eliminating bail altogether is the ultimate goal, this measured reform would be an incremental step towards broader change, building public support for holistic reform.","PeriodicalId":21855,"journal":{"name":"SSRN Electronic Journal","volume":"26 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141920463","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In his recent monograph, Territorial Status in International Law, Jure Vidmar offers ‘a new theory of statehood’ that consolidates his existing work and departs in important ways from legal orthodoxy. As a work of doctrinal law, the text is rigorous; however, its theoretical contribution is somewhat unclear. Vidmar’s central theoretical claim—that the status of individual states is established by discrete norms of customary international law—adds very little to his doctrinal argument. By examining his position, this review article examines what it might mean to provide helpful ‘theories of statehood’. It begins by framing the theoretical challenge posed by such work before setting out some desiderata for theoretical success in this area. Finally, it sketches out a general approach, grounded in Hannah Arendt’s conception of power, which offers a promising means for moving beyond doctrinal description within ‘reconstructive’ international legal theory.
{"title":"Ships of State and Empty Vessels: Critical Reflections on 'Territorial Status in International Law'","authors":"Alex Green","doi":"10.2139/ssrn.4871378","DOIUrl":"https://doi.org/10.2139/ssrn.4871378","url":null,"abstract":"\u0000 In his recent monograph, Territorial Status in International Law, Jure Vidmar offers ‘a new theory of statehood’ that consolidates his existing work and departs in important ways from legal orthodoxy. As a work of doctrinal law, the text is rigorous; however, its theoretical contribution is somewhat unclear. Vidmar’s central theoretical claim—that the status of individual states is established by discrete norms of customary international law—adds very little to his doctrinal argument. By examining his position, this review article examines what it might mean to provide helpful ‘theories of statehood’. It begins by framing the theoretical challenge posed by such work before setting out some desiderata for theoretical success in this area. Finally, it sketches out a general approach, grounded in Hannah Arendt’s conception of power, which offers a promising means for moving beyond doctrinal description within ‘reconstructive’ international legal theory.","PeriodicalId":21855,"journal":{"name":"SSRN Electronic Journal","volume":"2 10","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141920687","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Courts tasked with ruling on religious freedom claims in the private sector workplace have been faced with the following challenge: too weak a protection of religious freedom and it will become meaningless; too strong, and individual freedom will be stifled. Recently, courts on each side of the Atlantic have, respectively, leant towards each of these two extremes. In Europe, courts have afforded minimalist and, as I will argue, too restrictive a protection to religious interests. Whether out of deference to state constitutional traditions or economic interests, they have often undermined the protection of religious freedom. Conversely, in the United States, the Supreme Court has granted a maximalist and, as I will argue, excessive protection to religious interests. The article will demonstrate the flaws of each approach. It will unravel the main three types of bias that underlie these extreme positions, namely the state, the economic and the religious bias.
{"title":"Religious Expression and Exemptions in the Private Sector Workplace: Spotting Bias","authors":"Myriam Caroline Hunter-Henin","doi":"10.2139/ssrn.4911741","DOIUrl":"https://doi.org/10.2139/ssrn.4911741","url":null,"abstract":"\u0000 Courts tasked with ruling on religious freedom claims in the private sector workplace have been faced with the following challenge: too weak a protection of religious freedom and it will become meaningless; too strong, and individual freedom will be stifled. Recently, courts on each side of the Atlantic have, respectively, leant towards each of these two extremes. In Europe, courts have afforded minimalist and, as I will argue, too restrictive a protection to religious interests. Whether out of deference to state constitutional traditions or economic interests, they have often undermined the protection of religious freedom. Conversely, in the United States, the Supreme Court has granted a maximalist and, as I will argue, excessive protection to religious interests. The article will demonstrate the flaws of each approach. It will unravel the main three types of bias that underlie these extreme positions, namely the state, the economic and the religious bias.","PeriodicalId":21855,"journal":{"name":"SSRN Electronic Journal","volume":"57 5","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-08-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141923574","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Yardstick competition as a tool to set the prices of regional natural monopolies is now an established tool. After 30 years of application to the water industry in England and Wales, this article takes a critical look at how yardstick competition has been implemented in the latest Price Review 2019 (PR19). It proposes reforms to ensure that in the next Price Review 2024 (PR24) and/or beyond the efficiency challenges are appropriately set and the degree of information at the regulator’s disposal is maximised.
{"title":"Reform, Not Revolution, is What is Needed Now for Yardstick Competition","authors":"Pietro Crocioni, Mateo Silos Ribas","doi":"10.2139/ssrn.4810243","DOIUrl":"https://doi.org/10.2139/ssrn.4810243","url":null,"abstract":"\u0000 Yardstick competition as a tool to set the prices of regional natural monopolies is now an established tool. After 30 years of application to the water industry in England and Wales, this article takes a critical look at how yardstick competition has been implemented in the latest Price Review 2019 (PR19). It proposes reforms to ensure that in the next Price Review 2024 (PR24) and/or beyond the efficiency challenges are appropriately set and the degree of information at the regulator’s disposal is maximised.","PeriodicalId":21855,"journal":{"name":"SSRN Electronic Journal","volume":"18 16","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141926905","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Reconciliation at the Border of Public and Private Law: Rethinking Contract Principles in the Context of Impact and Benefit Agreements","authors":"Logan Stack","doi":"10.2139/ssrn.4770469","DOIUrl":"https://doi.org/10.2139/ssrn.4770469","url":null,"abstract":"","PeriodicalId":21855,"journal":{"name":"SSRN Electronic Journal","volume":"12 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141801023","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Community Reinvestment Act (CRA) was passed in 1977 as a response to redlining, the systemic discrimination against loan applicants who resided in predominantly Black neighborhoods. In enacting the CRA, Congress found that banks have a “continuing and affirmative obligation” to help meet the credit needs of the communities in which they are chartered. To that end, the CRA requires bank regulators to rate the record of each bank in fulfilling these obligations. While much has changed since 1977, some things have not. Financial services are now provided by a much broader set of entities including financial technology (fintech) firms, yet the CRA's mandates still just apply to banks. In addition, while the demographic compositions of neighborhoods have changed since 1977, Black applicants are still 2.5 times more likely than White applicants to be rejected for a home loan. On October 24, 2023, the banking agencies jointly issued final rules to “strengthen and modernize” the agencies' CRA regulations. While the updated rules do inject more objectivity in order to address persistent concerns about CRA ratings inflation, we contend that further amendments are needed to account for what has changed and what has not changed since its original enactment. In this article, we argue that the CRA continues to be a worthwhile endeavor, as it addresses gaps left by fair lending laws. To further its impact and address its many shortcomings though, we contend the CRA should be amended to also apply to nonbanks that provide financial services, to counter discrimination more directly, and to calculate CRA ratings more objectively.
{"title":"Rebooting the Community Reinvestment Act","authors":"Lindsay Jones, Goldburn P. Maynard","doi":"10.2139/ssrn.4670592","DOIUrl":"https://doi.org/10.2139/ssrn.4670592","url":null,"abstract":"The Community Reinvestment Act (CRA) was passed in 1977 as a response to redlining, the systemic discrimination against loan applicants who resided in predominantly Black neighborhoods. In enacting the CRA, Congress found that banks have a “continuing and affirmative obligation” to help meet the credit needs of the communities in which they are chartered. To that end, the CRA requires bank regulators to rate the record of each bank in fulfilling these obligations. While much has changed since 1977, some things have not. Financial services are now provided by a much broader set of entities including financial technology (fintech) firms, yet the CRA's mandates still just apply to banks. In addition, while the demographic compositions of neighborhoods have changed since 1977, Black applicants are still 2.5 times more likely than White applicants to be rejected for a home loan. On October 24, 2023, the banking agencies jointly issued final rules to “strengthen and modernize” the agencies' CRA regulations. While the updated rules do inject more objectivity in order to address persistent concerns about CRA ratings inflation, we contend that further amendments are needed to account for what has changed and what has not changed since its original enactment. In this article, we argue that the CRA continues to be a worthwhile endeavor, as it addresses gaps left by fair lending laws. To further its impact and address its many shortcomings though, we contend the CRA should be amended to also apply to nonbanks that provide financial services, to counter discrimination more directly, and to calculate CRA ratings more objectively.","PeriodicalId":21855,"journal":{"name":"SSRN Electronic Journal","volume":"58 6","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141802605","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper examines how the two common product liability rules (strict liability versus comparative negligence) affect firms and consumers when firms can advertise product quality deceptively and consumers exert precaution efforts endogenously.
{"title":"Product Safety and Liability with Deceptive Advertising and Moral Hazard","authors":"Xu Guan, Huan Cao, Krista J. Li, Yucheng Ding","doi":"10.2139/ssrn.4852493","DOIUrl":"https://doi.org/10.2139/ssrn.4852493","url":null,"abstract":"This paper examines how the two common product liability rules (strict liability versus comparative negligence) affect firms and consumers when firms can advertise product quality deceptively and consumers exert precaution efforts endogenously.","PeriodicalId":21855,"journal":{"name":"SSRN Electronic Journal","volume":"17 5","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141803388","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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