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Abortion and Affirmative Action: The Fragility of Supreme Court Political Decision-Making
No full textThis Article shows, on the basis of new evidence, that the canonical case of Marbury v. Madison has been grossly misinterpreted and that as a result of the misinterpretation we cannot understand what is wrong with contemporary cases such as Dobbs v. Jackson Women’s Health Organization and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.
The Article will proceed as follows. Because Marbury cannot be properly understood without understanding the eighteenth-century background against which it was decided, Part I will examine legal practices in colonial and post-Revolutionary America, focusing on cases in which judicial review emerged in the 1760s—cases about the constitutionality of Parliament’s 1765 Stamp Act. It will begin with a portrayal of mid-century practices that were a prerequisite to this emergence of judicial review. Part II will discuss Marbury itself and its companion case, Stuart v. Laird. Part III will compare political decisions in the past that have been overturned with those that have endured in order to formulate a theory about fragility. Part IV will turn to the political nature of the two recent decisions. Part V will inquire, in light of the theory from Part III, into the likelihood that the recent decisions will endure
Corporate Law in the Global South: Heterodox Stakeholderism
No full textHow do the corporate laws of Global South jurisdictions differ from their Global North counterparts? Prevailing stereotypes depict the corporate laws of developing countries as either antiquated or plagued by problems of enforcement and misfit despite formal convergence. This Article offers a different view by showing how Global South jurisdictions have pioneered heterodox stakeholder approaches in corporate law, such as the erosion of limited liability for purposes of stakeholder protection in Brazil and India, the adoption of mandatory corporate social responsibility in Indonesia and India, and the large-scale program of Black corporate ownership and empowerment in South Africa, among many others. By incorporating broader public policy and distribution objectives into corporate law, heterodox stakeholderism can be interpreted as an institutional adaptation—be it sensible or misguided—to a context of high inequality and externalities that remain unaddressed through other areas of law. As the rise of inequality and growing distrust in the state’s ability to tackle social and environmental concerns have brought the Global North closer to the Global South’s realities, the resurgent interest in stakeholderism in the developed world constitutes a surprising form of “reverse convergence” that merits greater attention. Finally, heterodox stakeholderism in the Global South also responds to critical, but heretofore neglected, distributional implications of corporate law rules, such as limited liability for environmental harm caused by corporate subsidiaries, which tend to enrich Global North companies and investors at the expense of Global South victims. These findings have implications for ongoing debates in corporate law, comparative law, law and development, and business and human rights
Tyrone Martin v. Secretary Pennsylvania Department of Corrections
No full textUSDC for the Middle District of Pennsylvani
