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The Unnecessary and Unfortunate Focus on “Animus,” “Bare Desire to Harm,” and “Bigotry” in Analyzing Opposition to Gay and Lesbian Rights
Get PDFI am delighted to participate in this symposium on Professor Linda C. McClain’s wonderful new book, Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law. All of the other papers in this symposium focus on Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (and thus connect with Chapter Eight of her book, on claims of religious exemptions from protections of gay and lesbian rights), while my piece will join issue with the related Chapter Seven, on bigotry, motives, and morality in the Supreme Court’s gay and lesbian rights cases. In this brief Essay, I cannot do justice to McClain’s rich, insightful, and illuminating treatment of bigotry. But I can offer some thoughts on the unnecessary and unfortunate focus on “bigotry” in analyzing opposition to gay and lesbian rights that are deeply informed by and congruent with those in her book
Race and Class: A Randomized Experiment with Prosecutors
Get PDFDisparities in criminal justice outcomes are well known, and prior observational research has shown correlations between the race of defendants and prosecutors’ decisions about how to charge and resolve cases. Yet causation is questionable: other factors, including unobserved variation in case facts, may account for some of the disparity. Disparities may also be driven by socio-economic class differences, which are highly correlated with race./= / \u3e/= / \u3eThis article presents the first blinded, randomized controlled experiment that tests for race and class effects in prosecutors’ charging decisions. Case-vignettes are manipulated between-subjects in five conditions to test effects of defendants’ race and class status. In the control condition, race and class are omitted, which allows baseline measures for bias and pilot-testing of a blinding reform. Primary outcome variables included whether the prosecutor charged a felony, whether the prosecutor would pursue a fine or imprisonment, and the amounts thereof. With 467 actual prosecutors participating nationwide, we found that race and class did not have detectable prejudicial effects on prosecutorial decisions. This finding, contrary to the majority of observational studies, suggests that other causes drive known disparities in criminal justice outcomes
Trump’s Flirtation With Emergency Powers Is Not Just About His Wall
No full textPresident Donald Trump has reportedly backed off for now from a proposal to invoke emergency powers under federal law or any “inherent” constitutional authority to build a wall along America’s southern border, even though Congress has refused to accede to this request. Still, Trump is maintaining that he retains the authority to make such a move, and it’s possible the frenetic commander in chief could change his mind again and whipsaw our nation into crisis the moment he gets impatient or feels slighted. Commentators, meanwhile, have rightly warned just how many federal laws actually do authorize certain kinds of emergency actions by a president. Others have pointed out differences between the current circumstances and other historical moments, such as Truman’s seizure of steel mills during the Korean War, or even Lincoln’s invocation of a national crisis to issue the Emancipation Proclamation.
Digitizing Brandenburg: Common Law Drift Toward a Causal Theory of Imminence
Get PDFThe Supreme Court’s Brandenburg v. Ohio test provides an exception to the First Amendment’s broad guarantee of freedom of speech. Where speech is (1) directed to inciting or producing imminent lawless action, and (2) is likely to incite or produce such action, the First Amendment withdraws its promise of protection. Thus, where the “imminence” of lawless action cannot be shown, free speech cannot be restricted. Since Brandenburg, Courts have applied a test for imminence that turns on proximity in space and in time — that is, the test evaluates how spatiotemporally imminent lawless activity is. In this Article, I argue that this approach is flawed, and cases involving the internet have brought this flaw to a tipping point. Past that tipping point, I propose that imminence is better understood as a causal question. That is, Brandenburg imminence should be a question of the ready-to-take-place-ness of the requisite lawless activity.At the heart of my argument is the assertion that courts are already drifting towards the results a causal test would produce. Relying on Professor David Strauss’s model of common law constitutional interpretation, I compare past common law developments to the current state of imminence law under Brandenburg and argue that imminence law is in the later stages of a common law shift. After making out the common law case for the causal approach, I argue that causal approach better squares with the underlying philosophical and normative reasoning driving First Amendment jurisprudence, propose reasoning for a causal test drawn from analogies to other areas of law where causal analysis takes place, and evaluate the implications of this theory as applied to a number of modern problems
Fiduciary Constitutionalism: Implications for Self-Pardons and Non-Delegation
Get PDFThe idea that public servants hold their offices in trust for subject-beneficiaries and that a sovereign\u27s exercise of its political power must be constrained by fiduciary standards-like the duties of loyalty and care-is not new. But scholars are collecting more and more evidence that the framers of the U.S. Constitution may have sought to constrain public power in ways that we would today call fiduciary. In this article, we explore some important legal conclusions that follow from fiduciary constitutionalism.
After developing some historical links between private fiduciary instruments and state and federal constitutions, we opine on what a fiduciary constitution may mean for modern issues in constitutional law. First, we argue that fiduciary constraint has implications for the legal validity of presidential pardons that are not efforts to pursue the public interest. Because the core duty of allfiduciaries is to be loyal to beneficiaries and not to pursue their own self-interest, pardons in derogation of a president\u27s fiduciary obligation-the command of \u27faithful execution in Article II-are invalid. Second, we suggest that when we properly conceive of parts of the Constitution as best analogized to a trust instrument, we can both appreciate where the non-delegation doctrine came from and why it is consistent with the original meaning of the Constitution to have a more relaxed rule about delegation today. By way of conclusion, we meditate upon how to convert legal conclusions that flow from fiduciary features of the Constitution into remedies that make sense for the potentially sui generis fiduciary law of constitutional law
Shareholder Activism and Stakeholder Engagement Strategies: Promoting Environmental Justice, Human Rights, and Sustainable Development Goals
Get PDFThe United Nations 2030 Agenda for Sustainable Development is an ambitious plan of action for people, planet and prosperity which seeks to promote peace and eradicate poverty. The Agenda\u27s goals cannot be reached without private sector participation and changes to certain business practices that contribute to adverse environmental and human rights impacts. When natural resources are managed responsibly the resulting economic development can help to eradicate poverty. However, when natural resources are managed poorly, certain extractives industry sector practices can generate or exacerbate human rights abuses, environmental degradation, corruption, and conflict. Fossil fuels are connected to the changing climate. The practices of the extractives industry sector and our patterns of consumption are implicated in the expected adverse social impacts and environmental injustices associated with the changing climate such as displacement and forced migration. For the Sustainable Development Goals (SDGs) set forth in the Agenda for Sustainable Development to be reached by 2030, action on climate change and patterns of corruption will require pressure from the public as well as partnership with the private sector. This paper explores the role of economic actors and public/private multi-stakeholder initiatives as partners in promoting action on climate and curbing corruption to protect human rights. It plots points of convergence between the SDGs and the priorities of socially responsible investors, the efforts of human rights and transparency initiatives regulating the extractives industry sector, and global principles intended to guide responsible business conduct. It explains how certain complementary points of convergence could create opportunities for business enterprises to address environmental and social challenges through aligning business incentives with the aims of the SDGs. First, the paper will provide an analysis of selected international law, policy, and governance instruments relevant to achieving the SDGs with reference to the role of the extractive industry sector in posing risks to human rights and environmental quality. The human right to a healthy environment and the responsibility of business enterprises to respect human rights is also addressed. Next, the paper will present examples of increasing investor interest in environmental and social issues examining shareholder proposals put forward by institutional investors seeking information about the financial implications of these issues for firms. The paper will then offer an overview of multi-stakeholder and extractive industry initiatives that provide an institutional framework for managing corruption and conflict. Finally, the paper concludes with a call for a consideration of shared values solutions to challenges and an increased appreciation of a range of ways to advance the SDGs by creating aligned incentives for economic actors
Feminism, Law, and Epidemiology in the AIDS Response
No full textGovernance Feminism: Notes from the Field brings together nineteen chapters from leading feminist scholars and activists to critically describe and assess contemporary feminist engagements with state and state-like power. Gathering examples from North America, South America, Europe, Asia, and the Middle East, it complements and expands on the companion volume Governance Feminism: An Introduction. Its chapters argue that governance feminism (GF) is institutionally diverse and globally distributed—emerging from traditional sites of state power as well as from various forms of governance and operating at the grassroots level, in the private sector, in civil society, and in international relations.
The book begins by confronting the key role that crime and punishment play in GFeminist projects. Here, contributors explore the ideological and political conditions under which this branch of GF became so robust and rethink the carceral turn. Other chapters speak to another face of GFeminism: feminists finding, in mundane and seemingly unspectacular bureaucratic tools, leverage to bring about change in policy and governance practices. Several contributions highlight the political, strategic, and ethical challenges that feminists and LGBT activists must negotiate to play on the governmental field. The book concludes with a focus on feminist interventions in postcolonial legal and political orders, looking at new policy spaces opened up by conflict, postconflict, and occupation.
Providing a clear, cross-cutting, critical lens through which to map developments in feminist governance around the world, Governance Feminism: Notes from the Field makes sense of the costs and benefits of current feminist realities to reimagine feminist futures
Diffusing New Technology Without Dissipating Rents: Some Historical Case Studies of Knowledge Sharing
Get PDFThe diffusion of innovations is supposed to dissipate inventors’ rents. Yet in many documented cases, inventors freely shared knowledge with their competitors. Using a model and case studies, this article explores why sharing did not eliminate inventors’ incentives. Each new technology coexisted with an alternative for one or more decades. This allowed inventors to earn rents while sharing knowledge, attaining major productivity gains. The technology diffusion literature suggests that such circumstances are common during the early stages of a new technology
Toward Understanding the Impact of Artificial Intelligence on Labor
No full textRapid advances in artificial intelligence (AI) and automation technologies have the potential to significantly disrupt labor markets. While AI and automation can augment the productivity of some workers, they can replace the work done by others and will likely transform almost all occupations at least to some degree. Rising automation is happening in a period of growing economic inequality, raising fears of mass technological unemployment and a renewed call for policy efforts to address the consequences of technological change. In this paper we discuss the barriers that inhibit scientists from measuring the effects of AI and automation on the future of work. These barriers include the lack of high-quality data about the nature of work (e.g., the dynamic requirements of occupations), lack of empirically informed models of key microlevel processes (e.g., skill substitution and human–machine complementarity), and insufficient understanding of how cognitive technologies interact with broader economic dynamics and institutional mechanisms (e.g., urban migration and international trade policy). Overcoming these barriers requires improvements in the longitudinal and spatial resolution of data, as well as refinements to data on workplace skills. These improvements will enable multidisciplinary research to quantitatively monitor and predict the complex evolution of work in tandem with technological progress. Finally, given the fundamental uncertainty in predicting technological change, we recommend developing a decision framework that focuses on resilience to unexpected scenarios in addition to general equilibrium behavior
The Hidden Costs of Dissent
Get PDFThis essay appears as part of a symposium dedicated to the book, ROBERT L. TSAI, PRACTICAL EQUALITY: FORGING JUSTICE IN A DIVIDED NATION (W.W. Norton 2019), and published in CONSTITUTIONAL COMMENTARY. In it, I jointly respond to two separate review essays by Franita Tolson and Nelson Tebbe. First, I emphasize that the book presents not a comprehensive theory of equality, i.e., what egalitarianism should look like under ideal conditions, but instead an account of egalitarian ethics and a menu of work-arounds that can be useful to promote egalitarian goals under more trying circumstances. Second, as to the concern that over-reliance on second-best solutions could contribute to ongoing oppression, I reply: while such a risk exists, it depends on what is prioritized and how any particular tool is deployed. Reducing material or symbolic forms of inequality immediately should generally be given priority over leaving inequities in place due to inchoate worries about the inherent limitations or potential misuse of legal or political concepts. Third, refraining from using the principle of equality when the risk of validating a tragic outcome is high reduces the possibility of conceptual lock-in. Forbearance leaves space for future creativity. Fourth, as to the worry that bypassing an opportunity to dissent can reduce the acceptability of equality arguments, I reply: the beneficial use of direct equality arguments can encourage others to also make them, but declining to do so doesn\u27t necessary stifle debate. A prominent use of the equality principle to justify a glaring inequity will usually be more damaging to future debate than strategic silence accompanied by a just outcome that can be built upon