VOLUME 164, ISSUE 6 July 2016

Articles

War Torts: Accountability for Autonomous Weapons

Rebecca Crootof

Unlike conventional weapons or remotely operated drones, autonomous weapon systems can independently select and engage targets. As a result, they may take actions that look like war crimes—the sinking of a cruise ship, the destruction of a village, the downing of a passenger jet—without any individual acting intentionally or recklessly. Absent such willful action, no one can be held criminally liable under existing international law.

Criminal law aims to prohibit certain actions, and individual criminal liability allows for the evaluation of whether someone is guilty of a moral wrong. Given that a successful ban on autonomous weapon systems is unlikely (and possibly even detrimental), what is needed is a complementary legal regime that holds states accountable for the injurious wrongs that are the side effects of employing these uniquely effective but inherently unpredictable and dangerous weapons. Just as the Industrial Revolution fostered the development of modern tort law, autonomous weapon systems highlight the need for “war torts”: serious violations of international humanitarian law that give rise to state responsibility.

Unbundled Bargains: Multi‐Agreement Dealmaking in Complex Mergers and Acquisitions

Cathy Hwang

Why are some bargains memorialized in dozens of related agreements, rather than one definitive agreement? This Article uses mergers and acquisitions (M&A) deals as a lens through which to understand why some bargains are governed by arrangements that this Article calls “unbundled bargains.” In an unbundled bargain, elements of a complex deal are broken out and memorialized in separate, but related, agreements. Unbundled bargains are common in M&A deals—these deals are governed by a definitive acquisition agreement, and also by employment agreements, transition services agreements, intellectual property assignment agreements, and many other ancillary agreements that shape the deal’s terms.

This Article shows that the boundaries of a deal extend beyond the acquisition agreement and into the manifold parts of an unbundled bargain. In the process, this Article makes three contributions to the literature. First, it provides a comprehensive account of why ancillary agreements exist, and shows that M&A deals are, invariably, governed by unbundled bargains. Second, it shows that unbundled bargains reduce dealmaking costs ex ante and deal enforcement costs ex post by making deals more modular and improving the quality of each modular part. Third, it shows that reframing many related agreements as one unbundled bargain has significant implications for contract theory and transactional practice.

Cybercrime Litigation

Jonathan Mayer

Cybercrime is, undoubtedly, a growing problem. Scarcely a week goes by without reports of massive online misconduct. The primary federal legislative response so far has been to impose computer abuse liability on network attackers. Every state has enacted a similar statute.

But do these cybercrime statutes actually punish and deter hackers? Members of Congress and Department of Justice prosecutors think so—and have repeatedly sought to expand the scope and consequences of liability. Meanwhile, scholars, advocates, and some judges have argued that computer abuse legislation is overbroad and ineffective. Law and policy debate has proceeded from these dueling narratives, not from data.

This Article presents the first comprehensive empirical analysis of litigation under the federal cybercrime statute, the Computer Fraud and Abuse Act. Drawing on a new dataset compiled from hundreds of civil and criminal pleadings, the Article addresses fundamental and unanswered questions about the on‐the‐ground function of cybercrime law.

Comments

How to Avoid the Standing Problem in Floyd: A Relaxed Approach to Standing in Class Actions

William I. Stewart

David Ourlicht, a black Manhattan man in his twenties, was stopped and frisked by New York City police officers three separate times in 2008. That same year, Ourlicht and three other black men who had similarly been stopped and frisked filed a federal lawsuit against the City of New York, alleging that the New York City Police Department’s stop‐and‐frisk program violated their Fourth and Fourteenth Amendment rights. The plaintiffs brought a class action suit in the Southern District of New York on behalf of themselves and all others similarly situated, and they sought an injunction mandating an overhaul of the City’s stop‐and‐frisk program. The case, Floyd v. City of New York, was heard by Judge Shira Scheindlin, who, in 2013, found that the City’s stop‐and‐frisk program was unconstitutional and ordered sweeping changes to the program. The plaintiffs got results: in 2011, NYPD officers stopped 686,000 individuals, or on average more than 13,000 per week; by the end of 2013, such stops had fallen by more than 90% to fewer than 2000 per week.

But an even more consequential decision in the case may have been an earlier, overlooked one: in 2012, the Floyd court found that the plaintiffs had standing to seek an injunction. More specifically, the court found that David Ourlicht had standing, and since he was a class representative, his standing satisfied Article III’s case or controversy requirement. In so holding, however, the court appeared to run afoul of two Supreme Court precedents: one that requires a plaintiff seeking injunctive relief to “establish a real and immediate threat that he [will] again” suffer the alleged harm, and another that holds “[t]hat a suit may be a class action . . . adds nothing to the question of standing.” Was there actually a real and immediate threat that David Ourlicht would again be stopped and frisked by NYPD officers? That seems doubtful.

And yet the district court’s finding that the plaintiffs had standing was correct, under both class action theory and Supreme Court precedent. This Comment articulates the reasons why it was correct. Part I begins by giving a brief overview of standing generally. Part II shows how theory and precedent justify a relaxed approach to standing in class actions. Finally, Part III explains the Floyd court’s standing analysis and shows that, below the surface, the court was actually using a justifiably relaxed approach.

Get Out of Jail Free? Preventing Employment Discrimination Against People with Criminal Records Using Ban the Box Laws

Elizabeth P. Weissert

Some legal scholars have argued that Ban the Box laws are inherently ineffective in preventing employment discrimination against people with criminal records. It is true that certain provisions in many of the existing Ban the Box laws limit their efficacy. For example, many states’ policies (including those of California) apply only to public employers. However, a model Ban the Box law can be crafted by synthesizing the most effective elements of existing laws. When adopted at the city or state level, this model Ban the Box law would be a highly effective means of providing legal protection for job applicants with criminal records.

Part I of this Comment describes the problem of employment discrimination against people with criminal records, exploring the prevalence of this practice, some of the reasons and motivations underlying it, and its consequences for job applicants with criminal records, especially the troubling disparate impact on African American and Hispanic men. Part II examines the limitations in the existing legal framework for preventing employment discrimination against people with criminal records under Title VII and the disparate impact doctrine. Part III details the Ban the Box movement, and compares the provisions of various versions of Ban the Box laws that have been enacted. Part IV synthesizes the most effective elements of enacted Ban the Box laws to propose a model Ban the Box law. Finally, the Comment concludes with an argument that this model Ban the Box law would provide a highly effective means of protecting job applicants with criminal records from employment discrimination.

Essays

Protecting, Restoring, Improving: Incorporating Therapeutic Jurisprudence and Restorative Justice Concepts into Civil Domestic Violence Cases

Peter Johnsen & Elia Robertson

This Essay calls attention to various deficiencies underlying the civil protection order process. It argues that the parties in the above scenarios would have benefited from a more holistic and less adversarial approach to their disputes. Specifically, this Essay advocates for an alternative approach to protection order proceedings that draws on two legal theories, therapeutic jurisprudenceand restorative justice. This approach better addresses litigants’ needs by acknowledging that complex relationships permeate domestic violence incidents. Such an approach could alleviate systemic issues currently facing family courts and have a lasting, positive impact on entire communities. This Essay uses the Pennsylvania Protection from Abuse Act and the Philadelphia Family Court Division as a template to highlight the shortcomings of current family court systems. It then offers a solution to supplement and improve upon current civil protection order proceedings.

Part I of this Essay sets forth the current civil response to domestic violence cases, including Pennsylvania’s Protection from Abuse Act. Part II provides an overview of both therapeutic jurisprudence and restorative justice and their relationship to one another. Part III outlines the main arguments against therapeutic jurisprudence and restorative justice as alternative responses to domestic violence. Part IV tackles those criticisms and argues that both theories can successfully coexist within the current paradigm. It highlights the parallel goals of the current system and the two approaches and explores their potential inclusion in existing statutes, such as Pennsylvania’s Protection from Abuse Act. The Essay concludes by discussing how the case studies of Petitioner One and Two could benefit from therapeutic jurisprudence and restorative justice principles.