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Something Concrete: How Labor Advocates Can Best Respond to the Ambiguity of Glacier Northwest
Get PDFThe Supreme Court’s much-anticipated decision in Glacier North-west, Inc. v. International Brotherhood of Teamsters Local No. 174 (Glacier) marked a critical moment for workers’ rights under the National Labor Relations Act (NLRA) and the longstanding practice of Garmon preemption. Yet, initial fears of a significant rollback of workers’ rights, driven by sensational headlines, were met with an unexpectedly narrow Court opinion. This Comment examines Glacier’s implications for Gar-mon preemption and the right to strike. It offers the historical background of the doctrine of labor law preemption before Glacier; presents a detailed analysis of Glacier itself, including its limited factual scope and the Court’s nuanced ruling; and discusses the varied predictions about its im-pact. Contrary to exaggerated reports, Glacier’s influence on Garmon preemption appears limited. However, it prompts crucial considerations for labor advocates regarding future litigation strategies. This Comment recommends a cautious but tempered approach, urging attorneys repre-senting unions to navigate future cases with a nuanced understanding of Glacier while safeguarding workers’ collective activities. Ultimately, Glacier’s narrow holding should not overinflate concerns about the right to strike. Instead, it serves as a call for vigilance and strategic adjustments to protect workers’ rights within the evolving landscape of labor law
Dark Accounting Matter
Get PDFPhysicists calculate that approximately 85% of the matter in the universe is composed of “dark matter” that “does not absorb, reflect, or emit electromagnetic radiation and is therefore difficult to detect.” The S&P 500 currently trades at a price-to-book value of 4.2, suggesting that book value accounts for less than 20% of the S&P 500’s market value. The remaining 80% appears nowhere in these firms’ balance sheets—it is invisible to contemporary accounting techniques and constitutes “dark accounting matter.”
Some “dark accounting matter” is composed of factors commonly described as components of “ESG.” Human capital, for example, is an intangible asset omitted from balance sheets and is commonly categorized under the “S” in ESG. Other intangible assets do, however, appear on the balance sheet. This asymmetric treatment is increasingly difficult to defend as the divergence between book and market value increases, especially as some intangible assets, such as intellectual property, may or may not appear on the balance sheet depending on how they were financed.
This Article seeks to stimulate discussion about how accounting and disclosure rules apply to ESG and other intangibles. I highlight the increasing irrelevance of traditional Generally Accepted Accounting Principles and urge that accounting practice and policy expand to capture at least some factors contributing to dark accounting matter. More precisely, issuers can be asked to describe and discuss factors that contribute to the difference between their market and book values and to provide tailored disclosures that seek to shed light on that difference
Green Dividends: A Case Study in Green Dividends and the Conditions for Private Ordering Solutions
Get PDFThis Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.
Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green dividends, shareholder voting establishes board authority to act and shareholder consent. Shareholder voting rules import securities laws’ mandate of complete and truthful information backed up by private rights of action.
This Essay maps Green dividends—first used in Germany—to U.S. corporate law and identifies Green dividends’ potential benefits and pitfalls. The Essay concludes with an extension of Green dividends but acknowledges that Green dividends will not facilitate all pro-social and environmental corporate investments. Green dividends are a tool in a growing toolkit that corporations can continue to expand with private ordering
New York
Get PDFIn New York there are several areas of difference in the treatment of police and non-police collective bargaining. They include the following: Fragmentation. New York City has its own, separate system for regulating collective bargaining, which is not included in this analysis. Impasse Process. When an impasse in bargaining is reached, police have access to binding interest arbitration. Non-police do not. Disciplinary Decisions. New York law provides that decisions on the discipline of police employee are excluded from bargaining. The same is not true for non-police employees. Investigation and Oversight. The process for imposing discipline, and surveillance are more often frequently challenged and found to be mandatory subjects of bargaining in the police context. Subcontracting and Skimming. Reassignment of duties and subcontracting cases are internally inconsistent providing no discernable patterns. Duties. PERB is slightly more likely to find a change of duties to be mandatorily bargainable for police than non-police
Pennsylvania
Get PDFIn Pennsylvania there are several areas of difference in the treatment of police and non-police collective bargaining. They include the following: Police Units are Governed by a Separate Statute. In Pennsylvania an earlier enacted statute governs police collective bargaining, and the Pennsylvania Supreme Court’s decision requires that statute to be read in pari materia with the Pennsylvania Public Employee Collective Bargaining Act, allowing police units to benefit from both laws. Police Have Interest Arbitration. Police units in Pennsylvania have access to interest arbitration to resolve impasses, most other units do not. Board Discretion and Lack of Transparency. The highly subjective test for determining mandatory subjects of bargaining vests dramatic power in the Pennsylvania Labor Relations Board and allows disparities to emerge unchallenged. In addition, information about Pennsylvania Labor Relations Board members is difficult to find. Disciplinary Enhancement More Likely to Be Bargainable for Police Units. The Board often finds work rules to be mandatory subjects of bargaining for police units but only when those changes come with enhanced penalties. Work Jurisdiction is Protected. PLRB is unusually protective of work jurisdiction, which could make reimagining policing in Pennsylvania difficult
Corrected Brief of Amici Curiae Fred T. Korematsu Center for Law and Equality, Service Employees International Union, American Federation of Teachers, American Association of University Professors, Center for Civil Rights and Critical Justice, Center for Law, Equity and Race, Center for Racial and Economic Justice, Center on Law, Race & Policy, Center on Race, Inequality, and the Law, Gibson-Banks Center for Race and the Law, The Lawyering Project, Autistic Self Advocacy Network, Bazelon Center for Mental Health Law, and Disability Law United in Support of Plaintiff
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Responding to Digital Addiction
Get PDFIn Unwired: Gaining Control over Addictive Technologies, Professor Gaia Bernstein calls our attention to the growing problem of digital addiction. Digital addiction may sound like something out of a science-fiction novel or something that does not raise the same sort of real-life practical concerns as are present in a physical health crisis or an economic decline. But as Bernstein presents the evidence, we learn that the consequences of digital addiction can be just as harmful as a serious disease or a financial depression. Cognitive development disorders, anxiety, emotional depression, social isolation, and other mental health ills can be debilitating—as much as a physical disorder or a fiscal disaster.
Despite the ill effects of digital addiction, it remains misunderstood and undiagnosed. As digital technologies continue to become more pervasive in most every aspect of our lives, the problem of digital addiction is easy to dismiss. It is often subtle and nuanced, growing at an ever-increasing rate. Practical proposals to remedy the social ill have largely been absent. Bernstein, however, leads a discussion about meaningful ways to intervene and to change behaviors. As she opens the discussion, Bernstein skillfully draws from the histories of other social problems, such as tobacco addiction, to teach us about the effectiveness of different methods for implementing change. She cites the science that gives credibility to both the notion and severity of digital addiction; she addresses the counterarguments of autonomy and personal responsibility; she sets forth industry’s responses and their compromised business models; she discusses potential redesigns for technologies and avenues of awareness for relevant audiences. Her analysis is thorough and thoughtful. Her conclusions make sense. In short, Bernstein has raised a clarion call for solving the problem of digital addiction