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Re-imagining Tomorrow: A Technology, Innovation Law, and Ethics Symposium on Addictive Technology and Children
Full text linkIn this Foreword, Professor Margaret Chon introduces Seattle University\u27s Technology, Innovation Law, and Ethics (TILE) program, the 2024 TILE Symposium, and Dr. Gaia Bernstein’s Unwired: Gaining Control Over Addictive Technologies
Massachusetts
Full text linkIn Massachusetts there are several areas of difference in the treatment of police and non-police collective bargaining. They include the following: Interest Arbitration. In Massachusetts police and fire bargaining units are entitled to interest arbitration to resolve bargaining disputes. Other employees have access to a less powerful non-binding fact finding process. All public employees are prohibited from striking. Transparency of Rules and Agency Processes. The rules that govern police impasse procedures are hidden in a law that was passed in 1987 and never codified, creating a “if you know, you know” process for police. Use of Impact Bargaining. While the rules of bargaining are similar for police and non-police units, the Commonwealth Employment Relations Board (CERB) is far more likely to use impact bargaining to impose the obligation in the police setting than the non-police setting. Disciplinary Rules and Processes. CERB finds many more disciplinary rules to be subject to bargaining for police than non-police units. Non-Delegation. There is a powerful non-delegation doctrine in Massachusetts which is mostly used by CERB to limit bargaining over changes to duties in police and fire unit
Through a Glass Darkly: How Securities Disclosures Give a Distorted View of the Economy
Full text linkOur understanding of the American economy often relies on stylized facts derived from mandatory disclosures by listed corporations. Data vendors like Standard & Poor’s vacuum up 10Ks and proxy statements into databases, and scholars distill these into tentative maps. This may have been adequate for a postwar economy centered on asset-heavy manufacturers, but it is increasingly out of step with an information-based economy. Companies listed on the stock market are fewer in number and less representative than they were, light in tangible assets and people, and heavy on IP. Basic facts such as what industry they are in are increasingly perplexing, which renders standard economic statistics such as industry concentration misleading. Most of the companies going public in recent years are perpetual money-losers in biotech and “software.” And we know next to nothing about their “human capital,” in spite of updates to Regulation S-K. This Article will show how the evolution of corporate disclosures affects how interested parties interpret the data the disclosures produce, how those interpretations obfuscate our understandings of modern corporations in a data-driven economy, and how we can establish interpretations of corporate data that faithfully portray the modern economy
Shareholder Expression in a Time of Heightened Political Tension
Full text linkIn this article, I provide context for my forthcoming research project on shareholder proposals and racial equity audits. Since the murder of George Floyd in May of 2020, progressive shareholder actors have increasingly used the proposal mechanism to advance diversity, equity, inclusion, and justice-related goals. These proposals have frequently gone beyond requesting the usual corporate fare of diversity trainings, intersectionality workshops, affinity groups, etc. Instead, a more ambitious type of proposal asks corporate America to conduct racial equity audits, defined as “an independent, objective and holistic analysis of a company’s policies, practices, products, services and efforts to combat systemic racism in order to end discrimination within or exhibited by the company with respect to its customers, suppliers or other stakeholders.” In my study, I am creating a dataset of racial equity audit-related shareholder proposals submitted to Russell 3000 companies by both left and right-leaning shareholders. I am systematically organizing, categorizing, and coding the textual data, as well as tracking the voting results on these proposals. My aim is to perform a documentary content analysis of the proposals themselves; corporate responses to the proposals; and the racial equity audits that have resulted from the proposal process
Does Climate Disclosure Work to Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism
Full text linkSignificant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.
In this Article, several interrelated questions will be discussed. First, what does the empirical evidence show about the effects of required greenhouse gas (GHG) disclosures on emissions? What mechanisms are engaged in producing the reductions in GHG emissions that are seen in some studies? Is there evidence that disclosure of climate data causes institutional investors to re-allocate capital, and that this re-allocation is a significant source of pressure on firms? What, then, can we conclude about the use of disclosure in efforts to address climate change?
Part One will first briefly describe three global, voluntary disclosure frameworks—TCFD, TNRD, and ISSB—each of which has either been globally influential (TCFD) or has the capacity to become influential (TNRD and ISSB). Part One will also describe two mandatory climate disclosure regimes: the Corporate Sustainability Reporting Directive (CSRD) in the EU, and the Securities and Exchange Commission’s (SEC) Climate Disclosure Rule in the U.S. Part Two will discuss some emerging empirical evidence on the effects of GHG emissions disclosure as an example of targeted climate transparency. Empirical research on the effects of mandatory GHG emissions disclosure in the UK and U.S. will be used to inform that discussion. Part Three will explore the implications of that empirical evidence for evaluating the likely power of the disclosure initiatives described in Part One in reducing GHG emissions and stabilizing nature loss, and will conclude
THE UNTENABILITY OF JUSTICE CLARENCE THOMAS\u27S INDIAN LAW JURISPRUDENCE: CONFRONTING THE INDIAN COMMERCE CLAUSE TO ADDRESS THE PROBLEM OF HISTORICAL CHANGE IN FEDERAL INDIAN LAW
Full text linkBy viewing the Indian Commerce Clause as conferring only a modest grant of federal power over Indian affairs—a power limited solely to trade in the economic sense of the word—Justice Clarence Thomas has subjected the Court’s Indian law jurisprudence to a wide-ranging originalist critique that, if successful, would invalidate nearly all of federal Indian law. Justice Thomas’s efforts to locate plenary power within the metes and bounds of the Indian Commerce Clause are here revealed for what they really are: attempts at tenability and coherence in a field of law which simultaneously bolsters tribal sovereignty while restricting it in ways that do not necessarily accord with the Court’s own precedents nor the language of the Constitution itself. Though a more thorough and faithful approach to history shows Justice Thomas’s conclusions about the purposes and limits of the Indian Commerce Clause to be unpersuasive, his broader point remains: the Court will continue to grapple with the challenge of reinterpreting historical legacy into present day jurisprudential categories and ought to develop a more historically accurate and less “schizophrenic” manner of doing so. This article puts forth a new framework for addressing the problem of historical change in the Court’s Indian law jurisprudence: a shift away from coherence as the ideal towards a more text-specific, statute-and-treatise-focused approach which accurately incorporates the relevant historical context
Neurotechnology Works Its Way Forward
Full text linkNeurotechnology is an emerging and rapidly advancing field of technology used to collect, process, and analyze brain or nervous system activity. The market is expected to reach $21 billion by 2026.
In a previous article, published in October 2023, we explored the potential of neurotechnology applications in the workplace, like electroencephalogram (EEG) headbands that monitor fatigue and boost safety, software and EEG combination technologies that creates a shortcut to the human brain and optimizes complex decision-making, and earbuds that track focus and stress.
We have continued to study and speak about these issues in various forums, and meanwhile, technology and legal changes are underway. This Article tracks the technology’s advances in the workplace and examines additional consumer and healthcare applications in the United States. Additionally, we address certain other legal and regulatory concerns with neurotechnology. We examine privacy considerations and protections to defend workers, consumers, and others from unfettered access to their innermost thoughts, emotions, and feelings. Finally, we evaluate the potential evidentiary use of neurotechnology, comparing it to its unreliable predecessor, the polygraph test, and we explore the future possibility that this technology may be a means of assessing whether witnesses are telling the truth in the courtroom.
Though it seems farfetched to track thoughts and emotions, the technology is here and its potential applications in the mid-twenty-first century workplace are wide-ranging—and a little scary
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, Race and Law Centers, and Civil Rights and Advocacy Organizations in Support of Plaintiff
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Defining Deference: Impacts of Abandoning Chevron on Emerging Technology Governance and Administrative Law
Full text linkEmerging technologies, particularly Artificial Intelligence (AI), often lead to unforeseen legal outcomes. Notable abuses in areas such as facial recognition, employment bias, and housing discrimination are well known. However, legislative responses to these issues either have been largely reactive or there has been no legislative response at all. In lieu of legislation, agencies have sought to fill the gap. For example, the Federal Communications Commission (FCC) recently proposed a rule mandating voter notification for all AI-generated political phone calls citing the Telephone Consumer Protection Act (TCPA) of 1991 as authority. However, the TCPA was originally passed to curtail telemarketing, not to authorize regulation of political ads. This raises questions about the FCC’s authority. Historically, the Supreme Court relied on Chevron, which offered broad deference to an agency’s interpretation of a statute Congress charged it to administer. This Article examines how the Supreme Court—which recently abandoned Chevron Deference—will now interpret the FCC’s and similar agency claims of authority in the future. This Article argues that the Court, in abandoning Chevron, seeks to expand judicial power by imposing “clear statements” on agencies via the Major Questions Doctrine. However, this Article observes that clear statement expansion in the agency context is vastly unique to other areas of clear statements jurisprudence because the Administrative Procedure Act (APA) provides two statutory ways for Congress to completely write the Court out of key areas of administrative discretion. This Article concludes that the Court’s current activism may potentially backfire resulting in Congress limiting the Court and leave agencies solely responsible to address the myriad of unforeseen legal issues that emerging technologies will undoubtedly present