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Market Myopia\u27s Climate Bubble
Get PDFA growing number of financial institutions, ranging from BlackRock to the Bank of England, have warned that markets may not be accurately incorporating climate change-related risks into asset prices. This Article seeks to explain how this mispricing can exist at the level of individual assets drawing from scholarship on corporate governance and the mechanisms of market (in)efficiency. Market actors: 1. Lack the fine-grained asset-level data they need in order to assess risk exposure; 2. Continue to rely on outdated means of assessing risk; 3. Have misaligned incentives resulting in climate-specific agency costs; 4. Have myopic biases exacerbated by climate change misinformation; and 5. Are impeded by captured regulators distorting the market. Further, trends in institutional share ownership reinforce apathy regarding assessment of firm-specific fundamentals, especially over long-term horizons.This underpricing of corporate climate risk contributes to the negative effects of climate change itself, as the mispricing of risk in the present leads to a misallocation of investment capital, hindering future adaptation and subsidizing future fossil combustion. These risks could accumulate to the macroeconomic scale, generating a systemic risk to the financial system. While a broad array of government interventions are necessary to mitigate climate related financial risks, this Article focuses on proposals for corporate governance and securities regulation—and their limits. Signals from the Biden Administration suggest that mandatory climate risk disclosure regulation from the Securities and Exchange Commission is forthcoming. This Article argues that climate risk disclosure is necessary, though alone not sufficient, to address the widespread disregard of corporate climate exposure
Addressing Patent Gender Disparities
No full textWomen comprise 29% of the science, technology, engineering, and mathematics (STEM) workforce but only 12.8% of US patent inventors (1). Institutional structures and biases contribute to the patent equity gap (2–4). To increase the number of women who hold patents, institutions must give everyone more information about patents, ensure that women receive equal credit for their work, and provide women with equitable access to work opportunities
State Cost-Control Reforms and ERISA Preemption
No full textAbstract Issue: State legislators continue to pursue reforms aimed at reducing health care costs. But the federal Employee Retirement Income Security Act (ERISA) threatens enforcement of state laws that impact employer-sponsored health insurance, especially the self-funded plans that comprise 64 percent of employer-sponsored coverage. ERISA preempts state laws directly targeting these plans and stretches into topics with only a tangential relationship to employer insurance. Preemption dilutes states’ ability to collect data, control prices, and protect consumers. Goals: Identify types of health care cost reforms states have pursued since 2019 and assess the ERISA preemption implications for those state reforms. Methods: Survey state health bills relating to health care costs passed from 2019 to June 2021, identify common provisions, and analyze the ERISA preemption implications for those provisions. Key Findings and Conclusions: States recently passed an array of reforms, mostly targeting prescription drug costs, provider reimbursement, consumer protection, data collection on health care spending, and insurance coverage. Many of these reforms are fully enforceable, but ERISA preemption threatens some popular measures as applied to employers’ self-funded plans. While recent Supreme Court precedents limit ERISA preemption’s application, the law still poses an obstacle to state cost-control reforms — whether ambitious or modest
Bargaining for Abolition
Get PDFWhat if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? Early observers of twentieth century urban criminal courts likened them to factories.1 Since then, commentators often deploy the pejorative epithet “assembly line justice” to describe criminal court’s processes.2 The term conveys the criticism of a mechanical system delivering a form of justice that is impersonal and fallible. Perhaps unintentionally, the epithet reveals another truth: criminal court is also a workplace, and it takes labor to keep it running. But beyond a metaphor, how might a sustained analysis of labor in criminal courts enhance our power of observation?
The social theorist who pioneered labor as a prism of analysis was Karl Marx.3 For Marx, human labor was the source of all value and the engine for world historical change.4 Marx’s labor theory of value formed the building block to his philosophy of history: dialectical historical materialism.5 It is not abstract ideas that drove historical progress but rather the creative energy that humans poured into their efforts.6 But a person does not approach the world as an artist before a blank canvas.7 Rather, people live in a particular time in history and face specific limits that mediate their creative energies.8 It is from that dialectical alchemy of engaged human effort and historically contingent material conditions that an existing or an entirely new social structure can emerge.9 Inherently, Marx’s theory of history held open the possibility for social transformation because of the weight he afforded to human agency. Because Marx wrote about a system—capitalism—in a way that he hoped could be useful to those working to overthrow it, it seems particularly apt to invoke his work in a colloquium dedicated to thinking about subverting legal systems.10
Although Marx developed his labor theory of value to elucidate the real dynamics animating commercial exchange, anthropologists like David Graeber have adapted his insights to other spheres of life.11 Institutions, including legal ones, Graeber argues, are only as powerful and valuable as the human effort behind them.12 Just as Marx scrutinized the dynamics of commodity exchange to discover the true source of economic value, Graeber encouraged scholars to study institutions and cultural practices as practical philosophies where people enact their “conceptions of what is ultimately good, proper, or desirable in human life.”13
With Graeber and Marx in mind, I offer three different ways to think about labor in criminal court: (1) labor as a source of sociological value, (2) labor as an input that generates certain measurable outcomes, and (3) labor as a vehicle to advance abolitionist reforms.
First, through their quotidian activities, criminal courts’ workers enact a practical philosophy that communicates lessons about who and how we value each other. Drawing on ethnographic accounts, I argue that criminal courts’ actors—prosecutors and judges, among others—engage in “violence work.”14 The violence is not only physical but also social and structural. Their labor weakens social bonds and entrenches group-level hierarchies, expressed as race, class, and ability.
Second, labor is an input that determines the size of the criminal punishment system. The addition of more prosecutors and their increased productivity lie at the heart of the historic growth in prison admissions at the turn of the twentieth century.15 In turn, as advocates devise reforms to dismantle mass criminalization, shrinking prosecutors’ offices may be the key to true transformation.
Third, labor is also a vital site for struggle. The labor lens illuminates the promise of a specific strategy: building social movement labor unionism in public defenders’ offices. Unionized public defenders are uniquely positioned to leverage their working conditions as a platform to advocate for abolitionist reforms that benefit society more broadly: they can demand reductions to prosecutors’ offices to reduce their caseloads and shrink the size of the criminal punishment system. Such a tactic subverts not only the continued operation of criminal courts but also traditional expectations of lawyers as experts leveraging their rarified skills. Instead, the lawyers position themselves as workers and members of the organized labor movement
Arizona’s debt collection reform—a small step towards health justice
No full textAmericans are swimming in medical debt—or, more aptly, drowning in it. And, if the results of elections in Arizona on 8 November are any indication, they’re angry about it. Proposition 209,a ballot initiative on whether Arizona should place limits on debt collection for medical bills, garnered support from nearly three quarters of voters.That lopsided margin is particularly striking in a state whose government has long been controlled by Republicans and where the 2022 midterm election votes were almost evenly split between Republican and Democratic candidates
Llegaron los Federales: The Federal Government’s Prosecution of Local Criminal Activity in Puerto Rico
Get PDFIn the midst of a debilitating humanitarian crisis in Puerto Rico and high-profile litigation concerning other U.S. territories, scholars, political leaders, and activists have elevated conversations of constitutionally sanctioned inequality into the public spotlight. With respect to Puerto Rico, these conversations focus on its current economic morass and relation to the debate over decolonization. Absent from these important discussions is the role that federal criminal law plays in manifesting Congress’ continued plenary power over U.S. territories. This Article breaks from that pattern and highlights an ignored part of federal criminal jurisprudence: the federal prosecution of local criminal activity in Puerto Rico.
This Article argues that federal prosecution of local criminal activity is an explicit manifestation of the federal government’s continued colonial grasp over the Island. Moreover, it contends that scholars, advocates, and politicians should consider the significance of federal prosecutorial power as they approach decolonization options for the Island. The Article begins by setting the current stage of federal prosecutions on the Island, explaining how local and federal forces often work together in prosecuting federal crimes, and exhibiting how that collaboration has led to a federal system of mass incarceration over which Puerto Ricans have no direct control. The Article next details the jurisprudential evolution of applying federal criminal laws to the Island and highlights the way in which the creation of the Commonwealth of Puerto Rico in 1952 has allowed courts to simultaneously pay lip service to the ideals of liberty and equality on the mainland by invoking the popularly branded “compact theory,” while sanctioning unequal treatment in Puerto Rico. Finally, the Article explores why conversations about decolonization should focus on the federal government’s ability to prosecute local criminal activity
Consumer Law as an Axis of Economic Inequality
Get PDFIn the standard paradigm of consumer law, a voluntary transaction is supposed to be welfare enhancing for each of the parties involved. We challenge this foundational presumption and ask to what extent many common consumer contracts are in fact extractive despite resulting from voluntary exchanges. With inequality growing throughout the world, to a degree that threatens the stability of both the economies and governments of even the wealthiest nations, we ask this fundamental question in an effort to identify root causes of inequality and to mark some guideposts for the articles that follow. Taken together, our speculations suggest that the seller-buyer relationship is a site of inequality and domination worth freestanding attention from equality’s champions
(Un)stable BITs
Get PDFIn November 2018, after more than a year of negotiations by representatives from Canada, Mexico, and the United States, the United States Mexico-Canada Agreement (USMCA) was signed by leaders from the three member states, replacing the North American Free Trade Agreement (NAFTA). The Trump Administration viewed the successful renegotiation of NAFTA as one of its signature achievements and argued that the USMCA “solves the many deficiencies and mistakes in NAFTA.” One of the key revisions in the USMCA was the partial removal of investor-state dispute settlement (ISDS), the primary mechanism that had been used to enforce the investor protections guaranteed by NAFTA
“If It Learns Easy, It Taught Hard” Applying Lessons from Practice to the Lawyering Skills Classroom
Get PDFThe end of the academic year is a natural time for reflection. As I complete my fifth year teaching Lawyering Skills at Boston University School of Law, I am taking time to reflect on my experience. I came to teaching mid-career, after practicing in the litigation group at a Boston firm for fifteen years. I enjoyed mentoring and training junior associates, so teaching was a logical next step. As I reflect on my work as a Lawyering Skills Instructor, I realize that many of the lessons I learned in practice also apply to teaching. The most ubiquitous of these lessons is that good teaching, like good writing and lawyering, takes a lot of hard work. Thoughtful planning and meticulous execution are crucial whether you are lecturing in a classroom or arguing in a courtroom. Here are a few additional lessons from practice that also apply to teaching
Rewriting Whren v. United States
Get PDFIn 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that the Court’s hands were tied./= / \u3e/= / \u3eThis Article argues otherwise by offering an alternative Supreme Court opinion that could have decided the case. In the context of doing so, the Article limits its archive—the materials on which it formally relies—to sources that were available to the Court when the case was litigated. We do not pretend that this citational practice fully avoids the pitfalls of presentism. To be perfectly transparent, how we view Whren is very much informed by the broad literature that has emerged over the past two decades arguing that the case was wrongly decided. Still, that we have limited our archive along the preceding lines strengthens the case that the Court could have reached a different conclusion—within the confines of Fourth Amendment law—that took the dignity and sanctity of Black lives more seriously. We have written the opinion in the voice of the late Justice Thurgood Marshall, whose constitutional jurisprudence routinely centered the experiences of the marginalized, the minoritized, and the forgotten