The Georgetown Law Journal

Latest print issue: Vol. 107 Issue 2

Whether in response to robo advising, artificial intelligence, or crypto-currencies such as Bitcoin, regulators around the world have made it a top policy priority to supervise the exponential growth of financial tech-nology (or “fintech”) in the post-crisis era. However, applying traditional regulatory strategies to new technological ecosystems has proved concep-tually difficult. Part of the challenge lies in managing the trade-offs that accompany the regulation of innovations that could, conceivably, both help and hurt consumers as well as market participants. Problems also arise from the common assumption that today’s fintech is a mere continua-tion of the story of innovation that has shaped finance for centuries. This Article offers a new theoretical framework for understanding and regulating fintech by showing how the supervision of financial innovation is invariably bound by what can be described as a policy trilemma.

This Article posits that the increase in student suppression of speech at colleges and universities is a product of the distorted democratic-values inculcation to which students have been exposed via state disciplinary censorship and student speech-suppressive pedagogy in primary and secondary schools, resulting from the devolution of the Supreme Court’s student speech jurisprudence. Although the Court has consistently identified democratic- values inculcation as a core mission of public schools, its current student speech jurisprudence twists the true meaning of this inculcation by identifying student speech suppression as a democratic value. Following this judicial endorsement, American K–12 schools have increasingly infringed upon the First Amendment rights of students.

The connections between domestic abuse, gun violence, and murder have received substantial media attention in recent months in the after-math of numerous mass shootings. It seems that in the weeks following each of these horrific crimes, authorities discover a history of domestic violence in the perpetrator’s past, witnesses come forward with disturbing stories that viewers think should have tipped them off, and political pundits debate the effectiveness of gun laws in America. This disheartening pattern has told the story of dozens of tragic killings in recent memory. This Note addresses two gaping holes in domestic violence law and policy that are easily plugged, but require a level of commitment from legislators that has been absent in recent years. By taking guns out of homes of abusive relationships and ensuring that patterns of coercive control and violence that lead to murder are not ignored, the criminal justice system can take a major step forward in acknowledging and addressing a plague in current American culture.

There is an enormous literature on the intersection between the First Amendment and various IP regimes such as copyright and trademark. This literature typically omits patent law from the argument, reflecting an implicit assumption that patent protection poses no threat to free speech. This assumption is wrong. As this Article will explain, patents can restrict free speech just as much as copyrights and trademarks. Indeed, patents often pose an even greater threat to speech than do copyrights and trademarks: precisely because people assume that patents pose no threat to speech, patent law has developed none of the doctrinal safe-guards for free speech that copyright law and trademark law have incorporated.

As recent partisan gerrymandering cases have shown, three-judge dis-trict courts play a unique and important role in how the federal judiciary considers significant election law disputes. Yet two somewhat quirky pro-cedural questions involving these courts remain unresolved: first, is a Supreme Court ruling to summarily affirm a three-judge district court’s decision precedential on all future courts? That is, why should a one-line order from the Supreme Court, without explanation, formally bind all future courts on the issue, especially when it is unclear what aspect of the lower court’s decision was correct? Second, must a three-judge dis-trict court follow, as mandatory authority, circuit precedent in the circuit in which it sits, even though an appeal from the ruling of a three-judge district court will skip the court of appeals and go directly to the U.S. Supreme Court? This Article tackles these problems and provides clear-cut answers, which will ultimately improve judicial decisionmaking for some of the most important cases that the federal judiciary hears given their effect on democracy.

You walk into a courtroom. You see a man at the defendant’s table. His arms and legs are shackled. His nerves are visible. His fear is potent. The judge instructs him to stand. He faces the jury. Guilty. Guilty of capi-tal murder. But the jury is not done with this man. Now it must decide whether he deserves the ultimate penalty: death. Into the courtroom walks a woman waving a re´sume´ covered with every psychiatric degree that exists. She sits in the witness chair. You hear the prosecutor describe the defendant’s past actions with excruciating detail. You see the prose-cutor turn to that psychiatrist and ask her, hypothetically, if the person that the prosecutor just described would be likely to commit a violent crime in the future. The psychiatrist, in turn, looks each member of the jury in the eye and says, “I am 100% certain that such a man would com-mit another violent crime.” The jury hears this “expert testimony.” The jury sentences the man to die. Although this scene might seem like some-thing out of a tasteless Hollywood drama, in nine states across the coun-try, juries are permitted to hear this type of expert testimony when making determinations of future dangerousness. Despite the seriousness of the question the jury must confront, there are no rules of evidence to protect against unreliable proclamations by these experts. Some have argued that the evidentiary standard laid out by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. could help protect against unreliable expert testimony about future dangerousness. But Daubert won’t do. A balancing test, modeled as a reverse 403 test of weighted considerations of the probative and prejudicial value of such testimony, will better protect capital defendants during sentencing. This Note explores why this solution is both needed and proper.

Web-exclusive content: GLJ Online Vol. 107

This Note posits that the Second Circuit's new definition of friendship for insider trading cases, as set forth in United States v. Martoma, is incorrect. Rather, United States v. Newman’s close standard is the correct definition of friendship. The paper is divided into two parts. Part I addresses the antecedent issue of whether Salman v. United States rejected the close standard, concluding that Salman neither expressly nor impliedly rejected the close standard. Part II establishes that prior cases and the underlying policy rationale of the prohibition against insider trading compel the conclusion that the close standard is the proper definition of friendship under the gift theory.

Part I of this Note provides a brief background of cryptocurrencies and ICOs. Part II examines historical speculative bubbles and argues that the ICO market is a speculative bubble. Part III explores characteristics of those who invest in bubbles as well as the psychological biases that those investors may encounter. It presents psychological arguments for market behavior in an effort to counter the neoclassical economic claims for why a bubble cannot occur and identifies two distinct types of investors in ICOs—the smart money investors and noise traders. Part IV discusses the limited regulations currently governing the ICO market. Finally, Part V argues that an asymmetrically paternalistic regulatory scheme is the most fitting way to regulate the ICO market. Part V does not provide a comprehensive regulatory framework; rather, it argues for light-touch regulation of ICOs and offers examples for how to implement such regulation.

This Note is divided into five parts. Part I explores the history of psychological operations broadly, examining how information has been used to manipulate adversaries and foreign populations. Part II examines the development of technology and how social media has changed the way psychological operations are employed during peacetime to shape attitudes and intervene in sovereign affairs. Part III examines the current legal framework surrounding psychological operations and demonstrates how the gaps in that framework create legal grey zones for states to exploit through the use of disinformation on social media. Part IV discusses the role of international agreements in qualifying state use of “weaponized social media” as a prohibited intervention. It then considers the design of a multilateral treaty that addresses the limits of acceptable deliberate state behavior on social media when the use is intended to manipulate foreign populations during peacetime. This Note concludes by addressing the threat of emerging technologies and the need to reach an international consensus regarding permissible online behavior.

In Jesner v. Arab Bank, PLC, the Supreme Court held that foreign corporations are not subject to lawsuits under the Alien Tort Statute (“ATS”). Written by Justice Kennedy, the highly fractured opinion offered several reasons for its holding. Although commentators have already criticized various aspects of Justice Kennedy’s opinion, one point has not received meaningful consideration and merits correction. In his plurality opinion, Justice Kennedy attached significance to the placement of the Torture Victim Protection Act (“TVPA”) as a statutory note to the ATS in the U.S. Code. In so doing, he disregarded longstanding practice and black letter law that the placement of a statutory note in the U.S. Code by the Office of Law Revision Counsel (“OLRC”) does not have any substantive impact on the law’s meaning, interpretation, or application. This error merits correction by the Court for several reasons. Although it undoubtedly influenced Justice Kennedy’s interpretation of the ATS, its implications extend beyond this case. It will affect future ATS and TVPA cases. It also creates uncertainty over the status of the countless statutory notes that populate the federal code. And, it raises constitutional concerns by attaching legal significance to OLRC’s placement decisions.