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Board Gender Diversity: A Path to Achieving Substantive Equality in the United States
Get PDFWhile the European Union (EU) was founded on the concept of equality as a fundamental value in 1993, the United States was created at a time when women were considered legally inferior to men. This has had the lasting effect of preventing women in the United States from making inroads into positions of power. While legislated board gender diversity (BGD) mandates have been instituted in some EU countries, the United States has been loath to take that route, relying instead on the goodwill of corporate boards, with little progress. On September 30, 2018, however, California enacted a law that has stirred much controversy for requiring at least one woman to be on the boards of corporations headquartered in the state by 2020. Based on our analysis, the California bill and other similar legislative efforts will fail without parallel constitutional action and cultural change in the United States.
We begin by examining the individual, institutional, and cultural reasons why the United States lags so far behind the rest of the industrialized world. We then discuss recent activism by powerful institutions such as NASDAQ and Goldman Sachs that may signify broader cultural change and receptiveness to positive action. Next, we conduct an analysis of the legislative, cultural, and constitutional factors that have helped the EU succeed in increasing board diversity. We conclude by offering a normative solution that can pave the way to achieving gender equality in the United States. Learning from the EU model, the United States must let go of the Equal Rights Amendment and adopt a Substantive Equality Amendment to the Constitution requiring positive action to facilitate laws enabling gender equality. This solution will have broad cultural impact outside of the board context and will help change the lived experiences and outcomes for women in the United States for generations to come. It will change the course of history
Computational Complexity and Tort Deterrence
Get PDFStandard formulations of the economic model of tort deterrence constitute the injurer as the unboundedly rational bad man. Unbounded rationality implies that the injurer can always compute the solution to his care-taking problem. This in turn implies that optimal liability rules can provide robust deterrence, for they can always induce the injurer to take socially optimal care. In this paper I examine the computational complexity of the injurer\u27s care-taking problem. I show that the injurer\u27s problem is computationally tractable when the precaution set is unidimensional or convex, but that it is computationally intractable when the precaution set is multidimensional and discrete. One implication is that the standard assumptions of unidimensional and convex care, though seemingly innocuous, are pivotal to ensuring that tort law can provide robust deterrence. It is therefore important to recognize situations with multidimensional discrete care, where robust tort deterrence may not be possible
#BlackLivesMatter—Getting from Contemporary Social Movements to Structural Change
Get PDFFrom the haters and hackers to propaganda and privacy concerns, social media often deserves its bad reputation. But the sustained activism that followed George Floyd’s death and the ongoing movement for racial justice also demonstrated how social media can be a crucial mechanism of social change. We saw how online and on-the-ground activism can fuel each other and build momentum in ways neither can achieve in isolation. We have seen in the Black Lives Matter (BLM) movement, and more specifically the hashtag #BlackLivesMatter, a new and powerful approach to using social media that goes beyond symbolic “slacktivism” and performative allyship to mobilizing people for social and cultural change. In this essay, we use empirical data to support a new theoretical model that illustrates how contemporary movements can use social media to build awareness, educate, and most importantly, promote the kinds of offline action that can lead to deeper structural change. In this case, BLM effectively leveraged social media to fuel and facilitate mass protests and broaden social awareness. In 2020-21, we have seen this begin to inspire deeper social, cultural, and legal change, in ways that previously felt like distant hope
9 Steps to End COVID-19 and Prevent the Next Pandemic: Essential Outcomes From the World Health Assembly
Get PDFA year ago, the World Health Assembly (WHA) met virtually for the first time since the creation of the World Health Organization (WHO) in 1948. Last year’s WHA adopted a resolution asking states to intensify action to fight COVID-19. Yet a year on, there have been 3.7 million deaths reported, with the real number estimated as more than 7 million. From May 24-31, 2021, the 74th WHA (WHA74) was again held virtually amidst this historic pandemic. The WHA created a member states working group on strengthening WHO preparedness for and response to health emergencies to make recommendations to next year’s WHA. Here are 9 steps to end this pandemic and prevent the next one: Prevent zoonotic spillovers Rapid detection and response Biosecurity and biosafety Oversight Empower the WHO Elevate Pandemic Response to High Political Levels Embed Equity in Preparation and Response Suspend Intellectual Property Rights Create an International Pandemic Financing Facility Support Health Worker
Facing Injustice: How Face Recognition Technology May Increase the Incidence of Misidentifications and Wrongful Convictions
Get PDFDoes law enforcement use of face recognition technology paired with eyewitness identifications increase the incidence of wrongful convictions in U.S. criminal law? This Article explores this critical question and posits that the answer may be yes. Facial recognition is frequently used by law enforcement agencies to help generate investigative leads that are then presented to eyewitnesses for positive identification. But erroneous eyewitness accounts are the number one cause of wrongful convictions, and the use of face recognition to generate investigative leads may create the conditions for erroneous eyewitness identifications to take place. This is because face recognition technology is designed to query a large database of faces to find look-alikes, and sometimes an innocent lookalike will resemble a suspect so closely that police may mistakenly select that person as an investigative lead, and an eyewitness may be unable to tell the difference between the lookalike and the actual suspect. This Article explores this possible problem and offers policy recommendations to help address it
The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution
Get PDFAt the end of the Constitutional Convention, the delegates appointed the Committee of Style and Arrangement to bring together the textual provisions that the Convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris drafted the document for the Committee, and, with few revisions and little debate, the Convention adopted Morris’s draft. For more than two hundred years, questions have been raised as to whether Morris covertly altered the text in order to advance his constitutional vision, but modern legal scholars and historians studying the Convention have either ignored the issue or concluded that Morris was an honest scrivener. No prior article has systematically compared the Committee’s draft to the previously adopted resolutions or discussed the implications of those changes for constitutional law.
This Article undertakes that comparison. It shows that Morris made fifteen significant changes to the Constitution and that many of the Constitution’s central elements were wholly or in critical part Morris’s work. Morris’s changes strengthened the national executive and judiciary, provided the textual basis for judicial review, increased presidential accountability through an expansive conception of impeachment, protected private property, mandated that the census report reflect “actual enumeration,” removed the constitutional text suggesting that slavery was just, and fought slavery’s spread.
This Article also shows that Morris created the basis for the Federalist reading of the Constitution. Federalists—notably including fellow Committee member Alexander Hamilton—repeatedly drew on language crafted by Morris as they fought for their vision of the Constitution. Because the changes Morris made to the Convention’s agreed language were subtle, both Republicans and Federalists were able to appeal to text in the great constitutional battles of the early republic. Modern originalists claim that the Republican reading reflects the original understanding of the Constitution, but this Article argues that the largely dismissed Federalist reading explains words, phrases, and punctuation that the Republican reading ignores or renders unintelligible. By contrast, the Federalist reading of the Preamble (which they saw as a grant of substantive power), the Article I and Article II Vesting Clauses (which were contrasted to argue for expansive executive power), the Article III Vesting Clause (which they read to mandate the creation of lower federal courts), the Contracts Clause (which they read to cover public as well as private contracts), the Impeachment Clause (which they read to cover both nonofficial and official acts), and the “law of the land” provision (which they construed as a basis for judicial review) gives effect to Morris’s—and the Constitution’s—words
How the Biden Administration Can Reinvigorate Global Health Security, Institutions, and Governance
Get PDFThe tragedy of COVID-19 can be fertile soil for deep structural reforms. President Biden can both bolster the immediate responses to COVID-19 and its vast ramifications, and spearhead lasting changes to create a healthier and safer world, from which the United States would richly benefit. The agenda we propose for President Biden is ambitious, yet US. bold leadership on global health will benefit all people, including Americans, and is in the U.S. national interest
Along with responding to the COVID-19 domestically, the Biden administration should enhance U.S.-initiatives home, expanding the Global Health Security Agenda and restoring and reinvigorating the PREDICT animal virus identification and tracking project, while ensuring that the U.S. Strategic National Stockpile is fully stocked with critical medical supplies and expanding research and development of antimicrobials. To enable the world to benefit from U.S. science – and to benefit from it – the administration should support the Open Science movement. And the administration should work with Congress to use devote 2% of past and future U.S. domestic COVID-19 spending to the global response, extend a debt moratorium, and enhance debt cancellation.
The United States should lead strengthened global governance for health security, beginning with proposing a doubling of mandatory WHO contributions, WHO reform including enhanced civil society participation, and strengthening the International Health Regulations (2005). Meanwhile, along with joining and funding the global vaccine distribution mechanism, COVAX, the Biden administration should propose creating a permanent facility for distributing PPE and other medical supplies and equipment, diagnostics, therapies, and vaccines during epidemics and pandemics. And by supporting use of TRIPS-flexibilities and, going further, supporting suspending intellectual property rights related to COVID-19 technologies, expanding production and increasing access, the administration would enable expanded global production, enhanced access, and lower prices. Finally, the Biden administration should lead a collaborative global effort to ensure that the global health architecture is firmly based in human rights, which would enhance equity and accountability and elevate the voices and priorities of marginalized populations. At its foundation would be the Framework Convention on Global Health, a proposed treaty that, if adopted, would strengthen implementation of the right to health and promote global health equity, while a Right to Health Capacity Fund could support right-to-health advocacy, accountability, and participation mechanisms
Race and Property Law
Get PDFThis chapter offers an outline for understanding the key role of race in producing property values in the history of the American property law system. It identifies major developments in the mutually formative relationship between race and property in America that made and remade property interests in America through the processes of 1) dispossessing nonwhites, 2) degrading their homelands, communities, and selves, and 3) limiting their efforts to enter public space and occupy or acquire property within the regime thereby established. First, it describes the use of law to create the two most important forms of property in the colonies and early Republic, both of which acquired value and status as property through white ownership and control– namely, enclosed land and enslaved human beings. Second, it addresses the significant shift in the way that race produced property values after the abolition of slavery, and how the anti-blackness entrenched by the slave trade spurred and organized resistance to Black landownership and property rights more generally. Third, it turns to the way the government, after consolidating the national territory through conquest, drew upon the continuing backlash to abolition and widespread desire for racial segregation to remake the infrastructure and the very commodities on offer on the real estate market through its notorious redlining program and establishment of a major secondary mortgage market. In this way, it seeks to show the structural relation between transformations to the property system during these different historical periods and the evolving role of race in its organization, while providing comprehensive citations, in the style of a handbook, to relevant scholarship and primary materials throughout
Developing an Innovative Pandemic Treaty to Advance Global Health Security
Get PDFRecognizing marked limitations of global health law in the COVID-19 pandemic, a rising number of states are supporting the development of a new pandemic treaty. This prospective treaty has the potential to clarify state obligations for pandemic preparedness and response and strengthen World Health Organization authorities to promote global health security. Examining the essential scope and content of a pandemic treaty, this column analyzes the policymaking processes and substantive authorities necessary to meet this historic moment