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Big Three Power, and Why It Matters
Get PDFThis Article focuses on the power and corporate governance significance of the three largest index fund managers commonly referred to collectively as the “Big Three.” We present current evidence on the substantial voting power of the Big Three and explain why it is likely to persist and, indeed, further grow. We show that, due to their voting power, the Big Three have considerable influence on corporate outcomes through both what they do and what they fail to do. We also discuss the Big Three’s undesirable incentives both to underinvest in stewardship and to be excessively deferential to corporate managers.
In the course of our analysis, we reply to responses and challenges to our earlier work on these issues that have been put forward by high-level officers of the Big Three and by a significant number of prominent academics. We show that these attempts to downplay Big Three power or the problems with their incentives do not hold up to scrutiny. We conclude by discussing the substantial stakes in this debate—the critical importance of recognizing the power of the Big Three, and why it matters
Commentary on Reynolds v. McNichols
Get PDFThe 1973 case Reynolds v McNichols concerns a woman who was repeatedly arrested on suspicion of and for “prostitution.” During these arrests, Roxanne Reynolds, the defendant, was subject to forced examination and treatment. The arrests and examinations were authorized by Section 735 of the Revised Municipal Code of the City and County of Denver, which directed the Department of Health and Hospitals “to use every available means to ascertain the existence of and investigate all suspected cases of communicable venereal disease, and to determine the sources of such infections.” Reynolds argued that the ordinance was unconstitutional because it was irrational, arbitrary, and subjected Reynolds to involuntary treatment and that the ordinance violated the Equal Protection Clause of the Fourteenth Amendment because it was being applied against female sex workers and not their male clients. Despite her compelling claims, the original decision found for the state, holding that the acts of the state the involuntary detention and treatment were within the police power “designed to protect public health.” The court tossed out her equal protection claim, addressing it only to say that because there was no evidence that Reynolds had actually had sex with her clients there was no reason that the men should be arrested.
In her rewritten opinion, Wendy Parmet takes a feminist lens to find for Reynolds. First, by excavating the long history of public health law with an eye towards how this history impacts the experiences of women, Parmet finds that arresting, detaining and treating women, and not their male clients, is an equal protection violation. Second, through a detailed review of the probable cause requirement of the Fourth Amendment—Parmet’s rewritten decision highlights that the City of Denver does not have probable cause to detain and arrest a person simply because she is a sex worker. And, finally, Parmet brings in a new line of constitutional doctrine on the right to privacy. Reynolds, decided in the same year as Roe v. Wade, provides an opportunity to reinforce how women have the right to do what they wish with their bodies, and, in turn, emphasizes that a person has the right to refuse treatment.
In supplementing the rewritten decision, this commentary first offers a historical perspective on the involuntary testing and treatment of sex workers for contagious diseases including sexually transmitted infections. It then turns to the sex worker movement, which picked up steam in 1973, the same year as Reynolds. The sex worker movement pushed to counter ordinances like the one used to arrest, detain, and treat Reynolds by advocating for a harm-reduction approach, that would address the harms of sex work without criminalizing the people selling and buying sex. After providing this background, this commentary provides an overview of the original decision and the feminist rewrite
ESG and Private Ordering
No full textEasterbrook and Fischel’s seminal book The Economic Structure of Corporate Law has taught us the crucial role of markets in shaping the corporate contract. With the rise of ESG, the nature of that contract is changing, but the importance of markets (and of their limitations) is not. In this piece, building on our previous work that traces the remarkable growth of ESG to a shift in demand, primarily, but not solely, among millennials, we discuss the role of markets in shaping ESG, as well as their limitations. The rise of social values, and the increasing willingness of millennials to act on them as market participants and corporate stakeholders, has forced managers to respond in ways that multiply the effect of those values. Critically, these preferences ultimately act as a constraint on firms’ behavior, and the emergence of ESG is best understood as a product of strong, though sometimes excessive, incentives to respond to social demand. Thus, conducting a context specific incentives’ analysis, rather than assuming that markets are always efficient or inefficient, should be preserved in the ESG era
Professor James Fleming
No full textProfessor James Fleming stops by Supreme Myths to talk about his new book defending substantive due process, his views on constitutional interpretation, and how constitutional practices work on the ground
Law and Health Care Quality, Patient Safety, and Liability, 9th Edition
No full textThis book offers a framework for studying modern quality approaches, including more expansive definitions of quality in health care, patient safety, and the use of data-driven methods for monitoring quality performance. The text begins with a student-friendly introduction to fundamental concepts affecting cost, quality, access, and equity in health care. The next chapters cover state and federal quality-control regulation, including professional licensure and discipline and Medicare and Medicaid provider certification for health care organizations. In this edition, materials on the professional-patient relationship -- including the duties of informed consent and confidentiality -- and materials on medical malpractice have been carefully edited and combined into a single chapter, followed by a discussion of the liability of health care organizations. The book explores the impact of nondiscrimination obligations as a matter of quality in health care, and the role of ERISA preemption on liability for quality failures. The book includes material on quality efforts within health care organizations, including their relationship with health care professionals through staff privileges, contracting, and employment
To heal the nation, hold even the politically powerful accountable
No full textThe Mar-a-Lago document investigation, as well as the New York attorney general’s civil fraud complaint against Donald Trump and his family members, alleging acts that could amount to criminal fraud, have revived a debate that has been ongoing since the 2020 election: Assuming there is the sufficient amount of evidence of criminality that ordinarily leads prosecutors to indictment, does the potential defendant’s status as a former president warrant special treatment — namely, an exemption from prosecution not provided for in the Constitution
What The Harm Principle Says About Vaccination and Healthcare Rationing
Get PDFClinical ethicists hold near consensus on the view that healthcare should be provided regardless of patients’ past behaviors. In classic cases, the consensus can be explained by two key rationales—a lack of acute scarcity and the intractability of the facts around those behaviors, which make discrimination on past behavior gratuitous and infeasible to do fairly. Healthcare providers have a duty to help those who can be helped. In contrast, the COVID-19 pandemic suggests the possible recurrence of a very different situation, where a foreseeable acute shortage of healthcare resources means that some cannot be helped. And that shortage is exacerbated by the discrete decision of some to decline a free, safe, and highly effective vaccine, where the facts are clear. In such a future case, if healthcare must be denied to some patients, rationers who ignore vaccination status will become complicit in externalizing the consequences of refusing vaccination onto those who did not refuse. I argue that giving the unvaccinated person healthcare resources that would have otherwise gone to other patients is to wrongfully set back the interests of, or harm, those patients. The article considers rejoinders around the voluntariness of the vaccination choice, which impinges both access and information, and how to scale this criterion proportionally with other rationing criteria that serve utility. Ultimately, the article speculates on why there will be some cognitive dissonance under this approach, while upholding a more general solidarity with and concern for all those seeking healthcare
Constructing Basic Liberties: A Defense of Substantive Due Process
No full textA strong and lively defense of substantive due process. From reproductive rights to marriage for same-sex couples, many of our basic liberties owe their protection to landmark Supreme Court decisions that have hinged on the doctrine of substantive due process. This doctrine is controversial—a battleground for opposing views around the relationship between law and morality in circumstances of moral pluralism—and is deeply vulnerable today. Against recurring charges that the practice of substantive due process is dangerously indeterminate and irredeemably undemocratic, Constructing Basic Liberties reveals the underlying coherence and structure of substantive due process and defends it as integral to our constitutional democracy. Reviewing the development of the doctrine over the last half-century, James E. Fleming rebuts popular arguments against substantive due process and shows that the Supreme Court has constructed basic liberties through common law constitutional interpretation: reasoning by analogy from one case to the next and making complex normative judgments about what basic liberties are significant for personal self-government. Elaborating key distinctions and tools for interpretation, Fleming makes a powerful case that substantive due process is a worthy practice that is based on the best understanding of our constitutional commitments to protecting ordered liberty and securing the status and benefits of equal citizenship for all.https://scholarship.law.bu.edu/books/1153/thumbnail.jp
Investigating Design
Get PDFDesign is ascendant. Steve Jobs’s legendary obsession with design was widely regarded as Apple’s comparative advantage, and that lesson has not been lost on its competitors. Design thinking is a growth industry, in business and at universities, and design professionals continue to take on increasingly significant roles within firms. The increasing economic significance of design has been reflected in an explosion of design patent applications and increasing amount of design litigation./= / \u3e/= / \u3eDespite design’s growing economic and legal importance, relatively little is known by legal scholars and policymakers about designers or the design process. This paper addresses that gap and is drawn from original data collected over several years interviewing and observing designers where they work. Our interviews provide a rich background on the design field(s), the nature and value of design, and designers’ goals and values./= / \u3e/= / \u3eStudying designers and the practice of design is not only economically and culturally relevant, but significant as a matter of legal policy because design has been an enduring puzzle in intellectual property law. Design is not archetypal subject matter for any of the IP systems. Indeed, Congress created the design patent system in 1842 precisely because it didn’t believe design fit any of the then-existing regimes. But design patent, like copyright and trademark (which have since expanded to accommodate at least some design) has always struggled with design’s hybrid nature. More specifically, each of those systems has attempted to separate out the functional aspects of design in order to channel protection for those features to utility patent law. Our data suggest that this challenge might be insurmountable. While there are good reasons for IP doctrines to attempt to channel protection, separation of functional features runs counter to modern designers’ interdisciplinarity and explicit goals of coherence and integration
Countering Gerrymandered Courts
Get PDFThe key insight in Professor Miriam Seifter\u27s outstanding article Countermajoritarian Legislatures is that state legislatures are usually antidemocratic due to partisan gerrymandering, whereas state governors and judiciaries are insulated from gerrymandering by statewide elections (or selection), and thus they should have a more prominent role in framing election law and in enforcing the separation of powers.
This Piece offers afriendly amendment: These observations are true, so long as states do not gerrymander their state supreme courts into antidemocratic districts. The problem is that historically, judicial elections emerged generally as districted elections, and often with regional and partisan politics shaping those districts. Many states still draw judicial districts with those considerations, and in our era of polarization, this problem is likely to get worse.
After some observations about the hypocrisies in the Supreme Court\u27s independent state legislatures precedents, this Piece offers some potential solutions: (1) extend the one-person/one-vote rule to judicial elections, ending the Baker v. Carr exception while retaining special due process rules for judicial elections; (2) adopt a special rule against partisan gerrymandering for judges; and/or (3) the most manageable solution, create a bright-line rule that all state judicial districts must be statewide