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From Trayvon Martin to George Floyd: The Trauma of Injustice
No full textBlack communities experience lasting “cultural trauma” from the lack of accountability for police and vigilante violence, explains Boston University School of Law Dean Angela Onwuachi-Willig in this Common Law episode
Transformation Through Transparency: Human Rights and Corporate Responsibilities in the Global Food System
No full textTransparency is a prerequisite for protecting human rights. Rights activists expose violations in supply chains in order to end abuses. Investors and consumers are calling on businesses to disclose more information about human rights risks. A well-crafted transparency regime that requires reporting about the human rights impacts of food production processes could serve to drive systemic changes by (1) empowering consumers to make informed choices consistent with their values and (2) enabling commercial producers to identify and address risks in their supply chains.
This chapter first explains how information is an essential element of the human right to food as it is set forth in binding international human rights law. Next the chapter turns to an exploration of product certification to increase transparency as a strategy for improving rights protection in food production. The Fair Food Program and the Agricultural Justice Project are then presented as examples of how a “worker-driven,” “consumer-powered,” and “market- enforced” initiative has worked to protect the rights of farm- workers. Finally, this chapter calls for increased supply chain transparency and trackability to better align business practices and policies with respect for human rights
Replicability in Empirical Legal Research
Get PDFAs part of a broader methodological reform movement, scientists are increasingly interested in improving the replicability of their research. Replicability allows others to perform replications to explore potential errors and statistical issues that might call the original results into question. Little attention, however, has been paid to the state of replicability in the field of empirical legal research (ELR). Quality is especially important in this field because empirical legal researchers produce work that is regularly relied upon by courts and other legal bodies. In this review article, we summarize the current state of ELR relative to the broader movement towards replicability in the social sciences. As part of that aim, we summarize recent collective replication efforts in ELR and transparency and replicability guidelines adopted by journals that publish ELR. Based on this review, ELR seems to be lagging other fields in implementing reforms. We conclude with suggestions for reforms that might encourage improved replicability
Race, Evidence, and Epistemic Injustice
No full textThis chapter starts off with a definition of “racist evidence” that includes: (1) evidence that suggests one racial group is inferior to or superior to another racial group in any way, (2) products of structural racism, (3) racially disparate evidentiary burdens in proving one’s racialized reality, and (4) the ways that racism distorts observation, perception and—accordingly—belief, which is then utilized as a basis of proof in legal proceedings.” Based on this definition, the chapter identifies and analyzes the epistemic problems posed by racialized factfinding and relates them to the broader notion of cultural cognition. This discussion focuses on the epistemic failings of “racial character evidence” and the unequal evidentiary treatment of white—as opposed to Black and Brown—“racialized reality evidence,” especially on matters of structural racism and race relations with law enforcement. While white racialized reality evidence receives “implicit judicial notice” and is fast-tracked to the jury box, the racialized reality evidence of Black and Brown people is subject to the full rigors of evidentiary scrutiny and often times suppressed. This system results in apervasive type of epistemic injustice
Your health is in your hands? US CDC COVID-19 mask guidance reveals the moral foundations of public health
Get PDFIn the second year of the COVID-19 pandemic, US public health policy remains at a crossroads. The US Centers for Disease Control and Prevention’s (CDC’s) May 28, 2021 guidance, which lifted masking recommendations for vaccinated people in most situations, exemplifies a troubling shift — away from public health objectives that center equity and toward a model of individual personal responsibility for health. CDC Director Rochelle Walensky emphasized that your health is in your hands, undermining the idea that fighting COVID is a public health responsibility that requires the support of institutions and communities. The social impacts of this scientific guidance, combined with the emergence of new variants, have exposed the fallacy of this approach, with most local mask restrictions lifted and infections rising dramatically among disadvantaged populations. Rapidly rising cases prompted the CDC on July 27th to recommend resuming indoor masking even for vaccinated people in areas of substantial or high transmission, but US policy continues to frame the pandemic largely as a matter of individual responsibility to the detriment of public health. As public health professionals and advocates, we call for a renewed commitment to core public health principles of collective responsibility, health equity, and human rights
The Mladić Appeal Judgment and the Enduring Legacy of the Hague Tribunals
No full textOn June 8, Ratko Mladić, the Bosnian Serb commander, lost his appeal before the United Nations International Residual Mechanism for Criminal Tribunals (Mechanism) Appeals Chamber in The Hague, Netherlands. The Appeals Chamber in Prosecutor v. Ratko Mladić affirmed Mladić’s convictions for genocide, war crimes, and crimes against humanity perpetrated during the war in Bosnia between 1992 and 1995, as well as his sentence of life imprisonment. The judgment brings to a close the last major case initiated by the U.N. International Criminal Tribunal for the Former Yugoslavia (ICTY), which was established in The Hague in 1993 to prosecute perpetrators of atrocity crimes in the Balkan region. The Mladić case thus offers an opportunity to assess not only the judgment itself, but also the ICTY’s legacy
A Prelude to a Critical Race Perspective on Civil Procedure
Get PDFIn this Essay, I examine the lack of scholarly attention given to the role of civil procedure in racial subordination. I posit that a dearth of critical thought interrogating the connections between procedure and the subjugation of marginalized peoples might be due to the limited experiences of procedural scholars; a misconception that procedural rules are a technical, objective, neutral area; and avoidance of discussion of race or other aspects of identity unless there is a case, material, or scholarly topic that meets an unreasonably high standard. I emphasize the importance of a critical race analysis of civil procedure
Understanding University Fee Litigation: A Few Lessons About The Perils of Imprudence for Higher Ed Plan Sponsors
Get PDFBeginning in August 2016, a series of class action lawsuits were filed on behalf of participants and beneficiaries of 403(b) employee retirement plans sponsored by major American colleges and universities. These plans are regulated by the 1974 Employee Retirement Income Security Act (“ERISA”), which sets minimum standards to protect the participants and beneficiaries of voluntarily established retirement and health plans. The allegations in the several lawsuits have centered primarily around breaches of fiduciary duties by those charged with administering the plan.
These cases are all class action lawsuits brought on behalf of the participants and beneficiaries of the plans in question. Generally, the class sizes are between 15,000 and 25,000, and the plaintiffs have not had difficulty getting their classes certified by the courts.
The defendants are 403(b) plan fiduciaries at prominent colleges and universities with large pools of assets held in ERISA covered plans. Each plan ranges in aggregate value from 4.7 billion.1 The fiduciaries charged with breach of duty are those explicitly designated as such in plan documents, as well as functional fiduciaries, i.e., those whose ERISA duties arise because they (1) exercise discretionary authority/control over management of a plan, (2) exercise authority/control over management/disposition of plan’s assets, (3) render investment advice for a fee (or has authority to do so), or (4) have any discretionary authority/responsibility in the of administration of plan.2 Most defendants are functional fiduciaries, as plan creation documents usually only explicitly name one person or organizational role.
Apart from the case against MIT, each plan sponsor maintained between two and five recordkeepers. Some recordkeepers in this industry provide only recordkeeping and administrative services, while others provide both recordkeeping services and investment products. This latter type is the kind employed by the defendant institutions subject to these suits. The primary companies whose services/products are at issue in these cases are TIAA-CREF, Vanguard, and Fidelity. Having multiple recordkeepers raises the costs associated with administering the plans and has been alleged by plaintiffs to be de-facto imprudent.
The MIT case is unique among these suits in that Fidelity was the sole recordkeeper and provider of investment options. In this case, the plaintiffs have also brought “prohibited transaction” claims based on the theory that Fidelity and MIT were both “parties in interest.” Plaintiffs assert that the philanthropic generosity showed to MIT by Fidelity, coupled with the presence on the MIT board of multiple Fidelity CEOs, created conflicts of interest and fell under the umbrella of prohibited transactions which create fiduciary conflicts, and which ERISA Section 406 was specifically designed to protect against.
The fiduciary breaches most cited are the “duty of prudence” and “duty of loyalty,” as well as allegations of various prohibited transactions. In almost every instance, the only claims which have survived 12(b)(6) motions to dismiss have been those relating to prudence
A Cross-Cutting Public Law Scholar for the Ages
Get PDFThanks to Fred Shapiro’s labor, we can see that the under-fifty category of most-cited legal scholars better represents the lawyering population than the all-time rankings of legal scholars, as it has more modern and diverse scholarship, and it has a higher percentage of women than the all-time rankings of legal scholars. Anyone who knows Professor Abbe Gluck’s work cannot be surprised that she is included among the most-cited scholars under the age of fifty. 1 Abbe is a force of nature, a brilliant legal mind with a diabolical work ethic. Even if she ceased publishing today, her scholarly legacy would be considerable and durable. It is nearly impossible to research public law and not to use her work as an intellectual touchstone
Firm Differences: Skill Sorting and Software
Get PDFRecent research shows that much recent rise in wage inequality comes from growing differences between firms, especially sorting of skilled workers to high-paying firms. This paper explores the role of proprietary software in these changes. Using job ad data, we find that proprietary software is strongly associated with firm wage fixed effects and also with firm skills. Software accounts for half or more of skill sorting across firms. Moreover, both skill sorting and firm wage effects are greater for larger firms. The huge growth in proprietary software helps explain the growth in skill sorting that increases wage inequality