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Mobilizable Labor Law
Get PDFIn the history of new labor localism, city-level living wage ordinances—emerging in the 1990s with Los Angeles leading the way—have generally been understood as a second-best, limited antipoverty device designed to raise wage floors, with only indirect effects on organized labor. Drawing upon original archival materials, this Article offers an alternative reading of the history of the living wage in Los Angeles, showing how it was designed and operationalized as a proactive tool to rebuild union density and reshape city politics. Doing so makes four key contributions. First, the Article theorizes and empirically examines the living wage as a pioneering form of mobilizable labor law: a local legal reform with pro-labor potential unlocked through collective action by unions, in this case, enabling union organizing by addressing regulatory weaknesses in the National Labor Relations Act. Second, the Article deepens labor history by reframing the LA living wage movement as a key inflection point connecting the seminal Justice for Janitors campaign, considered the launching pad for new labor efforts to organize low-wage immigrant workers, to new labor organizing building toward the Fight for $15. Third, contrary to the standard critique of lawyers demobilizing movements through legalization, the LA campaign reveals the creative role of lawyers behind the scenes in developing new understandings of labor law that established conditions of possibility for successful union organizing. Finally, by illuminating how labor actors mapped local government power to identify opportunities for mobilization—particularly in publicly held assets such as airports—the Article sheds new light on the dynamic relation between social movements and local government. Specifically, in the case of labor, strategic localism has catalyzed an iterative cycle of union organizing by helping build a power base for organized labor in big cities and promoting diffusion of pro-labor policymaking across political boundaries. Recovering this history of the living wage serves as a means to unlock law’s transformative potential in labor campaigns that rise to meet contemporary challenges of economic and racial inequalit
Firearm Contagion: A New Look at History
Get PDFGun violence is widely considered a serious public health problem in the United States, but less understood is what this means, if anything, for evolving Second Amendment doctrine. In New York Pistol & Rifle Association, Inc. v. Bruen, the Supreme Court held that laws infringing Second Amendment rights can only be sustained if the government can point to sufficient historical analogues. Yet, what qualifies as sufficiently similar, a suitable number of jurisdictions, or the most important historical eras all remain unclear. Under Bruen, lower courts across the country have struck down gun laws at an alarming pace, while scholars and jurists continue debating the so-called true meaning of centuries-old firearm restrictions at times when slavery existed, women could not vote, and it took Thomas Jefferson longer to travel from Washington, D.C. to Williamsburg, VA than it currently takes to fly to the other side of the planet.
This approach ignores the historical relevance of the government\u27s authority, if not outright duty, to respond to public health crises even if constitutional rights were implicated. The lack of historical laws related to mass shootings, large capacity magazines, and bullets designed to expand inside the body reflects the drastic evolution of gun violence rather than an impenetrable Second Amendment scope. Indeed, while state police powers to protect public health and safety preexist the Constitution, gun violence would have hardly been a priority for elected officials historically. Thus, the absence of robust, widespread gun regulations hardly reflects a consensus understanding of Second Amendment protections. Instead, examining accepted government restrictions for public health crises such as infectious diseases may provide better insight into the scope of authority to limit constitutional rights to protect the public. A public health law lens also helps to clarify that cementing policy options to emerging public health problems lacks historical pedigree
Social Enterprise Law: A Multijurisdictional Comparative Review
No full textThe concept of the social enterprise has gained considerable attention in a limited number of jurisdictions. In the United States, hybrid social enterprise forms, including Delaware’s public benefit corporation, the benefit corporation in over three dozen states, and the private B Corp certification offered by the nonprofit B Lab, have become prominent challenges to the long tradition of shareholder capitalism. In the United Kingdom, Community Interest Companies can benefit from public subsidies in the form of tax preferences. In others, like Germany, a robust welfare state has caused social enterprise to spread much less quickly.This volume looks beyond well-known examples of social enterprise to find that—to paraphrase Shakespeare—there are more forms of business enterprise than are dreamt of in our theory of the firm. Cooperatives, for example, play an important role in jurisdictions ranging from Colombia—where one of the country’s largest drugstores is owned by a cooperative—to Singapore, which introduced cooperatives in 1925 under British rule. Drawing on the rich cooperative traditions in Europe, jurisdictions across the EU now offer specialised social cooperative forms.This volume brings together experts on jurisdictions ranging from Belgium and Dubai to Switzerland and Taiwan, to describe the traditional and innovative structures employed by entrepreneurs to combine aspects of for-profit business with a broader societal purpose. Together, they draw a clear picture of what social enterprise has come to mean, both where conventional business enterprises prioritise the common good and where such an approach would be disfavoured.The volume also examines the wide range of measures taken by state actors to regulate social enterprises. In those jurisdictions in which the state provides support for social enterprise, the volume details the conditions that ventures must meet to receive and retain that support. The reports also describe an array of specialised legal forms and certification regimes offered by state and private actors and consider their impact.Offering an unprecedented perspective, this volume’s insights will inspire opportunities for innovation both by entrepreneurs themselves and by others in the private and public sectors determined to disrupt business law, thus making this area of law more responsive to the concerns of a diverse group of stakeholders. In particular, it presents evidence that the absence of restraints on the distribution of profits or residual assets of a venture tends to limit the availability of tax or other incentives. The British Columbia, Canadian benefit company, the Peruvian B.I.C. and the US benefit corporation offer telling examples of an absence of distribution constraints paired with little to no regulatory oversight and virtually no public subsidies.https://scholarship.law.bu.edu/books/1367/thumbnail.jp
Finance, investors, and human rights
No full textInvestors finance business enterprises and can be critical players in the growth and strategic direction of a company. Financial institutions play the important role of facilitating investment and advising businesses on their strategic growth. This chapter provides teachers of business and human rights with foundational background on the intersection of finance, investors, and human rights. It introduces the high-level architecture of the value chain of capital flows connecting investors, financial institutions, and companies, and describes ways the investment community can influence corporate human rights performance. It covers key concepts for understanding various actors’ roles, including fiduciary duty and “materiality.” It considers the leverage investors can exercise to encourage businesses to avoid and to address human rights risks and shareholder proposal strategies to promote better business practices
The Public Defender Movement in the Age of Mass Incarceration: Georgia\u27s Experience
Get PDFFocusing on the efforts of the Southern Center for Human Rights, this article offers a grassroots history of the creation of the first statewide public defender in the State of Georgia in 2003. Whereas federal court litigation to improve indigent defense failed to achieve lasting reform, a shift in tactics toward “rebellious localism,” characterized by state court lawsuits against county and city officials, succeeded in prodding lawmakers to create a new framework for delivering legal services to indigent defendants. This model of legal change was effective in documenting structural flaws and creating momentum for reform. Yet other conditions—such as front-end criminal law policies and funding decisions—continued to shape the actual quality of representation received by poor people
A More Perfect Union for Whom?
Get PDFAmending the federal Constitution has been instrumental in creating and developing the North American constitutional project. The difficult process embedded in Article V has been used by “The People” to expand rights and democracy, fix procedural deficiencies, and even overturn Supreme Court precedent. Yet, it is no secret that the amendment process has fallen to the wayside and that a constitutional amendment in our present age of extreme political polarization feels impossible.
Our nation’s history suggests otherwise. In John F. Kowal and Wilfred U. Codrington III’s exciting and inspirational new book, they explain that interest in constitutional amendments has coincided with periods of discontent, transformational social change, and even extreme political polarization. This Piece tracks the authors’ historical and jurisprudential arguments, focusing on their claim that The People have used the Constitution to welcome marginalized groups into the nation’s political community despite their exclusion at the Founding. Although that historical claim is accurate, the campaign for a fully inclusive democracy remains unfulfilled for many. One of those groups is the people of the unincorporated territories of the United States. This Piece examines how and why the people of the unincorporated territories were never meant to be a part of our nation. It then takes the lessons from Kowal and Codrington’s book and interrogates what a constitutional amendment fully welcoming the unincorporated territories into our political fold would look like
The Millennial Corporation: Strong Stakeholders, Weak Managers
Get PDFIn a prior paper, Shareholder Value(s): Index Fund ESG Activism and The New Millennial Corporate Governance, we argued that the index funds’ sudden shift towards socially-responsible investment, after decades of ignoring or opposing it, was driven by the competition to manage growing Millennial wealth. In our view, the main contribution of that paper was identifying sharp differences between Millennials and prior generations over investment, consumption, and employment. It has now become clear that this contribution has implications far beyond index-fund environmental, social and governance (“ESG”) activism and is in fact completely transforming the corporate world, marking a fundamental shift in how corporations function and requiring a new framework for analysis. This paper delineates a radical new framework for what we call The Millennial Corporation./= / \u3eWe argue that the Millennial-driven rise of stakeholderism and socially-responsible investing are features of a comprehensive cultural shift in how corporations are expected to behave, rendering earlier accounts of corporate behavior incomplete or obsolete. While there have been moments in the recent past when corporations promoted stakeholderism, these moments were transient and primarily rhetorical, with corporations quickly returning to the business-as-usual of shareholder primacy. This time, Millennials have made it impossible to return to business-as-usual. We show that, unlike Baby Boomers and Generation X, this generation is far more likely to take its politics to work, to the store or website, and to the investment portfolio. This consolidation of economic identity creates feedback effects that collapse the distinction between so-called political considerations, maximizing returns, and stakeholder interests in ways that are eroding traditional corporate law norms./= / \u3eFar from liberating managers from meaningful constraints--as critics of stakeholder corporate governance often allege--this new dynamic has imposed even further constraints on managers. We show that Millennial stakeholderism is fundamentally different from the stakeholderism of the past. As a result of Millennials’ influence, managers have strong incentives to promote stakeholder interests. In fact, they have no choice but to do so. Furthermore, rather than helping managers to insulate themselves, the new stakeholderism exposes managers to higher scrutiny. We present both a theoretical analysis and evidence supporting our account of the rise of the Millennial Corporation
The Making of Modern Property: Reinventing Roman Law in Nineteenth Century Europe and its Periphery
No full textIn this original intellectual history, Anna di Robilant traces the history of one of the most influential legal, political, and intellectual projects of modernity: the appropriation of Roman property law by liberal nineteenth-century jurists to fit the purposes of modern Europe. Drawing from a wealth of primary sources, many of which have never been translated into English, di Robilant outlines how a broad network of European jurists reinvented the classical Roman concept of property to support the process of modernisation. By placing this intellectual project within its historical context, she shows how changing class relations, economic policies and developing ideologies converged to produce the basis of modern property law. Bringing these developments to the twentieth century, this book demonstrates how this largely fabricated version of Roman property law shaped and continues to shape debates concerning economic growth, sustainability, and democratic participation. Contents:Introduction: The Romanist-bourgeois property culture: dominium, the social function and resources1. What Roman antiquity had to offer: a scientific method and a vast inventory of property concepts2. The foundations of Romanist-bourgeois property: Robert Joseph Pothier and the transition from medieval \u27divided dominium\u27 to modern absolute dominium3. Crafting Romanist-bourgeois property: Roman antiquity, political reaction, a rising bourgeoisie and scientism4. Reform, not revolution: modernizing property in Germany5. The tensions of absolute property6. Roman dominium in the republics of Latin America: property, nationhood, race and economic development7. The social critics: the critique of absolute dominium and the retrieval of the Roman social doctrinesConclusionshttps://scholarship.law.bu.edu/books/1142/thumbnail.jp
Policing & The Problem of Physical Restraint
Get PDFThe Fourth Amendment of the U.S. Constitution prohibits unreasonable “seizures” and thus renders unlawful police use of excessive force. On one hand, this definition is expansive. In the U.S. Supreme Court’s 2021 Term, in Torres v. Madrid, the Court clarified that a “seizure” includes any police application of physical force to the body with intent to restrain. Crucially, Chief Justice Roberts’ majority opinion emphasized that police may seize even when merely laying “the end of a finger” on a layperson’s body. And yet, the Supreme Court’s Fourth Amendment totality-of-the-circumstances reasonableness balancing test is notoriously imprecise—a “factbound morass,” in the famous words of Justice Scalia.Such breadth and imprecision in the Court’s Fourth Amendment jurisprudence create a problem: it under-specifies forms of deleterious police conduct. In particular, while scholarship has explored police firearm use, less research has considered the role of police putting “hands on” a civilian and its potential to esca- late toward lethal physical encounters. This is regrettable, given that such a “hands on” scenario occurs millions of times a year. At worst, it has escalated in- to high-profile police killings in cases like those of George Floyd, Eric Garner, Rayshard Brooks, and Michael Brown. Simply put, when police lay “hands on” laypeople, they may hurt or even kill them.This Article calls this “the problem of physical restraint” and systematically considers this problem in constitutional criminal procedure, law, and policy. As an initial matter, it shows how this problem is inevitable in both reformist and abolitionist agendas. It then shows how judges, policymakers, and police departments alike have overlooked such physical restraint due to legal under-specification, the political economy of policing, and a cultural-historical contingency that includes anti-Asian attitudes. It thus argues for robust intervention—judicial, legislative, and police training—to redress this oversight in pervasive police use of force
How Much Do Investors Care about Social Responsibility?
Get PDFPerhaps the most important corporate law debate over the last several years concerns whether directors and executives should manage the corporation to maximize value for investors or also take into account the interests of other stakeholders and society. But, do investors themselves wish to maximize returns, or are they willing to forgo returns for social purposes? And more broadly, do market participants, such as investors and consumers, differ from donors in the ways in which they prioritize monetary gains and the promotion of social goals?
This project attempts to answer these questions with evidence from an experiment conducted with 279 participants that involved real monetary gains for participants. Our empirical analysis provides four main results: First, investors are generally willing to forgo some monetary gains to promote social interests. Second, individuals are willing to forgo greater amounts when consuming and making donations than when investing. Third, whereas most investors are willing to forgo gains to promote social interests, a significant percentage of investors (thirty-two percent in our study) have a strong preference for maximizing monetary gains and are unwilling to forgo even very small amounts to advance any social goals. Fourth, there is significant heterogeneity in individuals\u27 willingness to forgo in each of the three channels (investment, consumption, and donation), which is related to their political affiliation, gender, and income. Our evidence suggests that Democrats, women, and higher-income participants tend to forgo more frequently and in greater amounts compared to Republicans, men, and lower income participants, though these relationships vary with the cause in question. These findings have important implications for the current debate regarding corporate social responsibility and for the actions of corporate executives and investment managers