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Comment on Proposed Regulation: Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights
Get PDFIn my view, while it is a significant improvement over its predecessor, the proposed rule’s persistent relegation of job creation/preservation to the status of mere “collateral benefit” is a mistake and undermines ERISA’s duty of loyalty. In reality, job creation and preservation are inextricably linked to fund financial health. Relegating that fact to a mere collateral benefit means trustees fail to consider the effect on a pension of investing in projects that eliminate the jobs of the fund’s own participants, or ignore the benefit of creating new jobs and thereby new pension contributors. This runs counter to President Biden’s executive order 14030 noting the importance of “creating well-paying job opportunities for workers.” It also runs counter to the spirit and purpose of the duty of loyalty. I therefore urge the Department to designate job creation and preservation as an ESG factor material to the risk-return analysis under §2550.404a-1(b)(4), or as one “relevant” to said analysis, should the Department adopt a relevance standard in lieu of materiality
Title 42, asylum, and politicising public health
Get PDFPresident Biden has continued the controversial immigration policy of the Trump era known as Title 42, which has caused harm and suffering to scores of asylum seekers under the guise of public health.1 The Centers for Disease Control and Prevention (CDC) ordered the policy in March 2020 with the stated purpose of limiting the spread of the coronavirus into the U.S.; though, CDC and public health officials have admitted this policy has no scientific basis and there is no evidence it has protected the public.2,3 Instead, the impetus behind the policy appears to be a desire to keep out or expel certain immigrants seeking protection as ports of entry remain open to other travelers.1 Over 1.2 million expulsions have occurred since the beginning of the pandemic, and those expelled are not given the opportunity to have their asylum claims heard.4 As of September 2021, only 272 were permitted to seek asylum under an extraordinarily limited exception.
Addressing public health’s failings during year one of Covid-19
Get PDFBy almost any measure, public health fell short during 2020. In retrospect, the list of what public health professionals, including federal and state public health officials, public health practitioners, and academics, could have done better is easy to articulate, and has already been the subject of angry books about the disasterous responses to the pandemic in Europe and the US [1,2]. It falls to all of us to pause, reflect, and ask: how do we move forward? We have five suggestions
Effective Discovery Practice
No full textThis chapter provides an overview of the rules governing pretrial and posttrial discovery in criminal cases, outlining the rules governing what information the defense and the Commonwealth are entitled to discover and required to produce. It further guides attorneys in obtaining the information necessary to developing an effective strategy throughout the pendency of the case, be it from the opposing party or through their own investigation
Secular Invocations and the Promise of Religious Pluralism
Get PDFThe Supreme Court has considered the constitutionality of “legislative prayer” twice, once in the 1983 case of Marsh v. Chambers and once in the 2014 case of Town of Greece v. Galloway. Although both of those cases upheld challenged invocation practices on the basis that such practices predated the adoption of the First Amendment, they also placed additional limits on the nature of such prayer programs, including that they be non-discriminatory, as Justice Kennedy explained in Town of Greece. In response to Justice Kennedy’s non-discrimination mandate, hundreds of secular individuals in the wake of Town of Greece asked to give and indeed have given secular invocations before legislatures and town boards across the country. These invocations have tended to stress a series of common themes, including the importance of reason, nature, science, diversity, and equality. By articulating an approach to life that denies the existence of a god or gods or other higher powers, these secular invocations contribute importantly to religious pluralism in public life. Although most of these secular invocations have gone smoothly, many have caused significant controversy. Several jurisdictions have recently adopted policies excluding nonbelievers from giving invocations, and these bans have given rise to three federal appellate court cases. Notably, both the D.C. Circuit and the Third Circuit have held that such secularist exclusion policies are not unconstitutional under the Religion Clauses. This Article, prepared for the Fall 2020 Roger Williams University Law School’s “Is This a Christian Nation?” conference, describes the Supreme Court’s jurisprudence regarding legislative prayer, explains the phenomenon of secular invocations, and argues that these secular invocations are critically important from the perspective of religious pluralism. The Article then describes the cases that have evaluated the constitutionality of secular exclusion polices and argues that these policies violate two fundamental First Amendment principles, namely that the government may not treat religious denominations differently under the Religion Clauses, and that the government may not discriminate on the basis of the viewpoint of speakers under the Free Speech Clause
The Boston Medical Center Immigrant Task Force: An Alternative to Teaching Immigration Law to Health Care Providers
Get PDFAs healthcare providers engage in the politics of reforming and humanizing our immigration and asylum “system” it is critical that they are able to refer their patients whose health is directly impacted by our immigration laws and policies to experts who can help them navigate the system and obtain the healthcare they need
POV: Supreme Court Rules That over 400,000 Immigrants are Ineligible to Permanently Remain in United States Decision will “have a devastating and far-reaching impact” on thousands of
No full textCongress created Temporary Protected Status (TPS) through the Immigration Act of 1990 as a means of protecting noncitizens whose home countries are experiencing ongoing armed conflict (such as civil war), an environmental disaster (such as earthquake or hurricane), or an epidemic. Today, more than 400,000 noncitizens in the United States have TPS status, enabling them to apply for work authorization and to remain in the United States safely, with their families and communities—often for years, or even decades
A Proper Burial
Get PDFThis is an invited response to Professor Mark Killenbeck\u27s article, Sober Second Thoughts? Korematsu Reconsidered. In his contrarian piece, Killenbeck argues that Korematsu was defensible, albeit on narrow grounds: it advanced the development of strict scrutiny. He goes on to argue that comparisons between the internment case and the Supreme Court\u27s Muslim travel ban case are overwrought and that the latter case, too, is defensible. I\u27m not convinced. First, to say that a ruling is defensible is not saying much; far better for critiques to be tethered to sterner standards. Second, after all these years, Korematsu remains a poorly reasoned decision that licensed racial animus and failed to account for the magnitude of unequal suffering by Japanese Americans under wartime internment policies. Third, the case stands for little as doctrine that subsequent precedent can\u27t offer. Fourth, in finally overruling Korematsu, the Roberts Court did not clearly reject the government\u27s ability to use race going forward when the need is great enough. Fifth, we do in fact learn valuable lessons comparing Korematsu and Trump v. Hawaii: a president\u27s power to inflict mass suffering has grown exponentially rather than diminished, he has more bureaucracies and defenders at his disposal, it\u27s easier for a president to cover his tracks when bigotry is involved, and judges continue to underestimate the incentives created by their decisions to inflict future harm. For all these reasons, Korematsu deserves a proper burial—more than the Roberts Court has given it. Trump v. Hawaii should be given the same treatment at the next best opportunity
Medical Cannabis and the Age of Majority
Get PDFThis Essay considers whether commercial cannabis retailers are adequately constrained in the sale of cannabis to 18- to 21-year-olds. It examines the intersection of the medical cannabis market, recreational cannabis market, and underlying status law regulating late adolescents aged 18 to 21. Because the age of majority licenses full medical decision-making, an 18-year-old can access medical cannabis but not recreational cannabis or alcohol. This Essay proceeds on the assumption that medical cannabis is a construct that has eased the process of achieving a legalized commercial cannabis market. The ambiguity around medical claims is comfortable in the libertarian soil of cannabis discourse, but it invites us to give special attention to 18-year-olds. This Essay argues that the right of an 18-year-old to access commercial cannabis using the medical construct is better understood as a right of the cannabis industry to access the 18-year-old market. People who do not use nicotine, alcohol, or cannabis before the age of 21 are much less likely to use and misuse later. Postponement becomes prevention. Therefore, when those access ages are raised, the industries are losing more than just three additional years of marketing; they are losing access to the creation of lifelong, high-volume users. The underage users are important to the business model because future misusers and abusers buy more reliably. Regulators should monitor the profit motive of the legal cannabis industry as it relates to late adolescents. The age of majority, which is the only explanation for 18-year-old access to medical cannabis, is too weak to justify what is actually self-medication in the colloquial sense. Similarly, the medical status of cannabis is too unclear to justify the risks that self medication poses to developing brains. As medical users melt into recreational users, and as medical use receives only the weakest of guidance from physicians due to its unique hybrid character, we should acknowledge that 21 may be the appropriate age of access for both
Public Health and the Power to Exclude: Immigrant Expulsions at the Border
Get PDFWe are presently in the midst of a crisis at the U.S.-Mexico border, as Courts, and indeed the Biden Administration, are struggling to manage thousands of immigrants waiting to seek asylum in the midst of a global pandemic. Beginning in March of 2020, against the advice of public health experts, the U.S. Government closed the southern U.S.-Mexico border, disproportionately impacting would-be asylum seekers from Central America, who are now immediately expelled from the United States should they reach the border under a process known as “Title 42.” Not only do these expulsions lack a legitimate public health rationale, but they also violate our domestic and international legal obligations to protect immigrants at risk of persecution or torture./= / \u3eThis piece begins by exploring the historic intersections of public health and immigration law, and the origins of federal quarantine and exclusion power. Woven into the article are first hand accounts of advocates on both sides of the border who have witnessed the devastating impact of COVID-19 era immigrant expulsions. Ultimately, this article argues that we must seek alternatives - including ending Title 42 expulsions, deferring to public health experts, dispatching additional resources to the border and ending our reliance on immigration detention