法律翻译｜《纽大法律评论》第98卷第1期目录＋摘要

译者｜赵昱杰 南京大学 LL.B.

审稿｜陈飞越 爱丁堡LL.M.

　　　左亦惟 中南财经政法大学LL.B.

编辑｜杨玟萱 中南财经政法大学本科

         李建云 湖南师范大学本科

责编｜王有蓉 中国政法大学硕士

A Theory of Stategraft

政府贪污理论

作者：BERNADETTE ATUAHENE

Neoliberalism and its accompanying austerity measures are shrinking local and national government budgets, even though constituent needs remain pressing. In desperation, public officials sometimes replenish public coffers through illicit extraction from segments of the population poorly positioned to fight back. In Detroit, for example, city officials inflated property tax assessments in violation of the Michigan Constitution, leading to illegally inflated property taxes that many homeowners could not afford to pay. Consequently, since 2009, one in three homes have completed the property tax foreclosure process, the highest number of property tax foreclosures in American history since the Great Depression. These unlawful practices are not just occurring in Detroit, but also in other American cities such as Ferguson, Philadelphia, and New Orleans.

Nevertheless, because corruption is universally defined as corrupt acts that are for private or personal gain, there is currently no lexicon to describe illegal acts that principally benefit the public treasury. I have coined the term “stategraft” to describe this overlooked phenomenon: when state agents transfer property from persons to the state in violation of the state’s own laws or basic human rights. To establish stategraft as an essential theoretical framework, this Article elaborates its definitional elements, demonstrates its conceptual value, and shows how it extends existing discourses on corruption, state crime, and the predatory state.

原文链接：https://www.nyulawreview.org/issues/volume-98-number-1/a-theory-of-stategraft/

Predatory Pricing Algorithms

掠夺性定价算法

作者：CHRISTOPHER R. LESLIE

In the battle for market supremacy, many firms are employing pricing software that removes humans from price-setting decisions. These pricing algorithms fundamentally change the dynamics of competition and have important implications for antitrust law. The Sherman Act has two operative provisions. Section One condemns agreements between firms that unreasonably restrain trade, such as price-fixing agreements. Section Two prohibits monopolizing a relevant market through anticompetitive conduct. Although a considerable body of excellent scholarship explains how pricing algorithms can collude to fix prices in violation of Section One, no scholarship discusses how algorithmic pricing could violate Section Two.

This Article addresses how pricing algorithms can facilitate illegal monopolization through predatory pricing. Predatory pricing is a two-stage strategy. First, in the predation phase, the predator charges a price below its costs, reckoning that its rivals will exit the market because they cannot make profitable sales at that price. The predator willingly incurs losses in order to force its rivals from the market. Second, during the recoupment phase, after its rivals have exited the market, the predator recovers its earlier losses by charging a monopoly price.

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Theorists have asserted that predatory pricing claims are inherently implausible for three reasons: (1) The predator must suffer disproportionately outsized losses because it controls a larger share of the market; (2) predatory pricing threats are not credible because a firm cannot believably commit to below-cost pricing; and (3) firms that exited the market during the predation phase will simply reenter the market during the recoupment phase. Based on these theoretical arguments, federal judges consistently reject predatory pricing claims.

This Article explains how algorithmic pricing undermines all three theoretical arguments claiming that predatory pricing is not a credible route to monopoly. First, a predatory firm can use pricing algorithms to identify and target its rivals’ customers for below-cost pricing, while continuing to charge their own existing customers a profitable price, which minimizes the predator’s losses during the predation phase. Second, algorithms can commit to price predation in ways humans cannot. Third, pricing algorithms present several new avenues for recouping the losses associated with predatory pricing, including algorithmic lock-in and price manipulation. In short, even if one believed that predatory pricing was implausible in the past, the proliferation of algorithmic pricing changes everything. Because pricing algorithms invalidate the theories behind the current judicial skepticism, this evolving technology requires federal courts to revisit the letter and spirit of antitrust law’s treatment of predatory pricing claims.

原文链接：https://www.nyulawreview.org/issues/volume-98-number-1/predatory-pricing-algorithms/

Strict Liability Abolition

严格责任的废除

作者：MICHAEL SEROTA

This Article reinvigorates the case for abolishing strict liability in the criminal law. Undertaking an intellectual history of mens rea policy, I spotlight two assumptions that have fueled strict liability’s historic rise and current deprioritization in criminal justice reform. One assumption is that eliminating culpable mental states from criminal statutes is an effective means of reducing crime. The other assumption is that adding culpable mental states to criminal statutes is an ineffective means of lowering prison rates or promoting racial justice. This Article argues that these assumptions are unsupported by available evidence and have no place in criminal policymaking. Synthesizing decades of social science research, I first explain why there is little reason to believe that strict liability promotes public safety. Next, building upon the first-ever legal impact study of mens rea reform, I explain how adding culpable mental states to criminal statutes could alter charging practices and conviction rates. I then demonstrate the racial justice benefits of universal mens rea standards by highlighting the concentration of strict liability in offenses disparately enforced against people of color. Through this deeper understanding of mens rea policy, the Article reveals the strength of the case against strict liability, and why culpable mental state requirements are an important tool in the fight against mass incarceration.

原文链接：https://www.nyulawreview.org/issues/volume-98-number-1/strict-liability-abolition/

The Gladue Approach: Addressing Indigenous Overincarceration Through Sentencing Reform

格拉杜方法：通过量刑改革解决土著人过度监禁的问题

作者：NASRIN CAMILLA AKBARI

In the American criminal justice system, individuals from marginalized communities routinely face longer terms and greater rates of incarceration compared to their nonmarginalized counterparts. Because the literature on mass incarceration and sentencing disparities has largely focused on the experiences of Black and Hispanic individuals, far less attention has been paid to the overincarceration of Native peoples. Yet there are clear indications that Native peoples are both overrepresented within the criminal justice system and subject to unique sentencing disparities as compared to other ethnicities. While these issues are partly motivated by traditional drivers of criminal behavior, including access barriers to housing, employment, and education, this Note argues that there is a greater systemic issue at play: the enduring legacy of colonialism. Accounting for—and correcting—this legacy in the criminal justice system is a complex task, though not an impossible one. For example, over the past twenty years, the Canadian criminal justice system has implemented a novel, remedial sentencing approach to address the overincarceration of Aboriginal offenders: the Gladue approach. Recognizing the extent to which the Canadian legal system has failed to account for the unique needs, experiences, and circumstances of Aboriginal offenders, the Gladue approach mandates an individualized and contextualized approach to sentencing, one which prioritizes community-based alternatives to incarceration and emphasizes restorative justice. This Note proposes two legal pathways by which to transplant the Gladue approach to the American criminal justice system. In so doing, it offers the first comprehensive analysis of the normative and constitutional implications of applying the Gladue approach to the sentencing of Native peoples within the United States. While the approach has challenges and shortcomings, it is nevertheless a powerful tool by which the American criminal justice system can begin to reckon with its colonial past and present.

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原文链接：https://www.nyulawreview.org/issues/volume-98-number-1/the-gladue-approach-addressing-indigenous-overincarceration-through-sentencing-reform/

Mr. Crawford Gets COVID: 

Courts’ Struggle to Preserve the Confrontation Clause During COVID and What It Teaches Us About the Underlying Rights

克劳福德先生感染了新冠：

法院在新冠疫情期间维护对质条款的斗争及其关于基本权利的启示

作者：ELIZABETH BAYS

One of the things courts across the nation struggled with throughout the COVID-19 pandemic was the conflict between preserving defendants’ rights under the Confrontation Clause of the Sixth Amendment and implementing the safest public health measures. Measures like masking or virtual testimony recommended by public health officials threatened to abridge defendants’ rights. This Note has two primary contentions. First, it will argue that the wide variation in the ways courts chose to resolve this tension revealed a fundamental issue in our Confrontation Clause jurisprudence: Courts have never actually defined the underlying right. In fact, this Note will argue, that the “confrontation right” is more appropriately understood as a bundle of distinct rights which must be carefully prioritized. Second, this Note will argue that the standards used to adopt these modifications were insufficiently rigorous. It proposes, therefore, that it is time for the legislature to intervene as they have in other situations involving modified confrontation, and to provide courts with a structured procedure for authorizing modified witness testimony during times of emergency.

原文链接：https://www.nyulawreview.org/issues/volume-98-number-1/mr-crawford-gets-covid-courts-struggle-to-preserve-the-confrontation-clause-during-covid-and-what-it-teaches-us-about-the-underlying-rights/

Green Industry, Procurement, and Trade:

Refining International Trade’s Relationship with Green Policy

绿色工业、采购和贸易：完善国际贸易与绿色政策的关系

作者：GARRETT DONNELLY

Green industrial policy, an aspirational headline with the 2019 Green New Deal Resolution, has continued to gain steam and take shape. Green industry was a core focus of presidential platforms during the 2020 election. Federal agencies have demonstrated an increased willingness to revamp their purchasing power—that is, their procurement policy—to buy green products and stimulate emerging green industrial sectors. In general, these policy shifts toward green industry typically tout three primary goals: to develop the domestic manufacturing base and to strengthen both environmental and labor protections. For instance, in November 2021, as part of the larger Infrastructure Investment and Jobs Act, Congress took aim at the failure of supply chains to meet adequate environmental and labor standards by enacting a domestic content preference-scheme for infrastructure programs receiving federal financial assistance. The nationalist orientation of this kind of policy, however, often runs afoul of the nondiscrimination spirit of World Trade Organization disciplines.

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This Note evaluates how trade disciplines can enable a green-industrial strategy in government procurement while abiding by WTO disciplines, offering a few options. While countries continue to aggressively deploy green industrial policies to attain environmental benefits, these strategies must be carefully structured to avoid cooptation by populist, protectionist goals. As such, this Note considers the implications that arise when this form of green industrial procurement supports the advancement of global welfare—and when it does not. In particular, this Note explores how refining the traditional relationship between international trade rules and green industrial initiatives can produce mutually beneficial results. On the one hand, trade rules can be interpreted to permit environmental and labor-conscious decisionmaking while protecting against protectionist discrimination. On the other, this Note proposes that procurement decisionmaking should incorporate supply-chain disclosure or cost-accounting of environmental and labor impact, which, when justified under the existing public morals discipline in WTO trade agreements, forms a method of government engagement that can enable a more robust international trade regime.

原文链接：https://www.nyulawreview.org/issues/volume-98-number-1/green-industry-procurement-and-trade-refining-international-trades-relationship-with-green-policy/

Bolstering Benefits Behind Bars:

Reevaluating Earned Income Tax Credit and Social Security Benefits Denials to Inmates

增强狱中福利：拒绝向囚犯提供劳动所得税抵免和社会安全福利之税收制度的重新评估

作者：BELINDA LEE

This Note describes how the tax system treats inmates, an intersection that has been relatively understudied by both tax and criminal justice scholars. The Note provides a detailed account of how inmates earn income through prison labor (what goes in) and the benefits denied to inmates (what comes out, or rather what often does not come out). The Note then asks why the tax system denies inmates Earned Income Tax Credit (EITC) and Social Security benefits. Traditional tax principles of equity, efficiency, and administrability do not justify the denials. This Note argues that the underlying culprit is that the tax system is being used to levy additional punishment on inmates. This has particularly insidious effects on communities of color given the connections between mass incarceration, poverty, and race. The Note proposes statutory repeal of the benefits exclusions and mandatory filing for inmates as a way of making the tax system better reflect the economic and social realities that inmates face, while simultaneously moving the system closer to fundamental tax principles.

原文链接：https://www.nyulawreview.org/issues/volume-98-number-1/bolstering-benefits-behind-bars-reevaluating-earned-income-tax-credit-and-social-security-benefits-denials-to-inmates/

Juvenile Life With(out) Parole

有（无）假释的未成年人生

作者：RACHEL E. LESLIE

Beginning in the late twentieth century, the Supreme Court gradually restricted the range of punishments that could be imposed on children convicted of crimes. The seminal cases Graham v. Florida, Miller v. Alabama, and Montgomery v. Louisiana banned the imposition of mandatory life without parole sentences on children who were under eighteen at the time of an offense and held that those juveniles must be given a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Some courts have extended the logic of these cases to invalidate life with parole sentences based on extremely long parole ineligibility periods, but no court has held that the practical unavailability of release within the current parole system makes any life sentence—regardless of its parole ineligibility period—functionally equivalent to life without parole.

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Building on recent scholarship about the constitutional role of parole release in juvenile sentencing, this Note points out that the Graham trilogy creates a substantive Eighth Amendment right for juveniles to be released upon a showing of maturity and rehabilitation, not merely a right to be considered for release. This Note exposes the failure of state parole systems to vindicate this right by systematically refusing to grant parole to juveniles. Because release on parole is a statistical improbability for juveniles sentenced to life with parole, this Note concludes that those sentences are actually unconstitutional sentences of de facto juvenile life without parole.

原文链接：https://www.nyulawreview.org/issues/volume-98-number-1/juvenile-life-without-parole/