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The Torch: Suffolk University College of Arts & Sciences Honors Program Newsletter, no. 10, Winter and Summer 2021
Get PDFhttps://dc.suffolk.edu/torch/1003/thumbnail.jp
Until Data Does Us Part—The Call for a Federal Analog to the California Consumer Privacy Act: A Litigation Perspective
Get PDFInternet Regulation—Second Circuit Follows Majority of Courts in Broad Application of Communications Decency Act Immunity—Force v. Facebook, Inc., 934 F.3d 53 (2d Cir. 2019)
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Legal History Repeats Itself on Climate Change: The Commerce Clause and Renewable Energy
Get PDFDiscrimination and power: Federal courts found that some state renewable power laws violate the U.S. Constitution Commerce Clause by discriminating against out-of-state renewable energy. At stake is climate change and the near-term future of the Planet. After warned almost a decade ago about their Constitutional violation, which states conformed their laws as the Earth has warmed? This article analyzes which of 22 U.S. states flagged as to having potentially unconstitutional discriminatory renewable energy laws a decade ago have conformed their discriminatory renewable energy laws and which have allowed legal history to repeat itself?/= / \u3eScrutinized technically rather than legally, electricity was identified as the second-most important invention since the wheel. Electric power is the preeminent U.S. technology undergirding all sixteen infrastructure sectors considered “critical” by the U.S. Department of Homeland Security. However, analyzed in this article is the unusual intra-circuit legal stand-off regarding the Constitution’s Commerce Clause, energy, and climate change law. This article analyzes how the Constitution’s Commerce Clause now serves as the legal fulcrum to leverage the law on climate and whether (unconstitutional) legal history repeats itself as the Biden administration steps forward
Separate But Free
No full text“Separate but equal” legally sanctioned segregation in public schools until Brown. Ever since, separate but free has been the prevailing dogma excusing segregation. From “freedom of choice” plans that facilitated massive resistance to desegregation to current school choice plans exacerbating racial, socioeconomic, and disability segregation, proponents have venerated parental freedom as the overriding principle.
This Article contends that, in the field of public education, the dogma of separate but free has no place; separate is inherently unfree. As this Article uniquely clarifies, segregation deprives schoolchildren of freedom to become equal citizens and freedom to learn in democratic, integrated, and transformative settings. We must name and reclaim these positive, social, emancipatory freedoms—envisioned by the framers of state constitution education clauses, developed by early progressives, reflected in the case law, and applied in “freedom schools” and by Southern Black teachers during the Civil Rights Era.
School choice practices that sustain and intensify segregation arbitrarily deprive children of these freedoms and thus offend due process guarantees in state constitutions. Antebellum state courts were the progenitors of substantive due process, prohibiting arbitrary deprivations of vested rights and voiding class legislation that conferred special benefits or imposed unique burdens, which did not serve legitimate, public purposes. This Article is the first to propose revitalizing state due process guarantees to resist segregative school choice practices in as-applied challenges.
Amid a pandemic, legislators are advancing bills which exploit the specious rhetoric of public-school failures and angst about the modes of instruction to expand schools of choice. But parental freedom through publicly funded school choice enjoys no constitutional protection. Nor is there a legitimate public purpose for segregative practices that arbitrarily deprive children of their freedoms, confer benefits on a few and burden the rest, and subvert the state constitutional duty to educate all children democratically.
Opposition to separate but free extends beyond school choice, potentially reaching other segregative state actions that curtail educational freedoms
The False Dichotomy of Corporate Governance Platitudes
Get PDFIn 2019, the Business Roundtable amended its principles of corporate governance, deleting references to the primary purpose of the corporation being to serve the shareholders. In doing so, it renewed the “shareholder vs. stakeholder” debate among academic theorists and politicians. The thesis here is that the zero-sum positions of the contending positions are a false dichotomy, failing to capture the complexity of the corporate management game as it is actually played. Sweeping and absolutist statements of the primary purpose of the corporation are based on arid thought experiments and idiosyncratic cases in which corporate leaders have managed to be either bullheaded or ill-advised. In the real world, management regularly commits itself to multiple competing constituencies, including the shareholders./= / \u3e/= / \u3eThere are three arguments. The first is from reality, borne out by a survey of pre-amendment CEO annual report letters to shareholders (2017) and post-amendment responses (2020) to the COVID-19 pandemic. The second is from economics. Neo-classical economic theory supporting the doctrine is misplaced; transaction cost analysis under the New Institution Economics does a far better job of explaining the primacy of wide corporate discretion in allocating surplus among the corporate constituencies. The third is from jurisprudence. Doctrinal dicta like “corporations exist primarily to maximize shareholder wealth” are not so much right or wrong as meaningless. Rather, the business judgment rule, which justifies almost any allocation of corporate surplus having an articulable connection to the best interest of the enterprise, subsumes all other platitudes posing as rules of law
Governance ≠ Leadership: What Blockchain and AI Won\u27t Do for Corporate Lawyers
Get PDFThis is a contribution to the Journal of Corporation Law’s 2020 symposium on blockchain technology and corporate governance. The thesis is that blockchain technology is well suited to the monitoring function in corporate governance; that monitoring as the primary function of corporate governance is a particularly legal conception; and that the business conception of governance has far more to do with leadership, strategy, and operations. If the legal and business conceptions of governance tend to be ships passing in the night (at least in this somewhat exaggerated rendering), it is because prevailing economic and legal theoretical models have a difficult time incorporating human qualities that underlie leadership, intuition, insight, and creativity. Law schools have long taught litigation skills and transactional skills have come into vogue as well. Teaching leadership to aspiring business lawyers is the next challenge
Oral History Interview with Robert Smith (SOH-057 video recording and transcript)
Get PDFRobert Smith, professor of law and former dean of Suffolk University Law School reflects on his eight years as dean (1999-2007) and his return to teaching (2007-2020). He notes the priorities that defined his deanship, including enhancing the external reputation of the school, diversifying the student body, expanding clinical opportunities for students, increasing the role and standing of the clinical and legal writing faculty, and increasing the bar passage rate. He describes efforts to increase the scholarly work of the faculty, the development of international programs, and the addition of specializations in the curriculum. He also discusses the creation of the Rappaport Center for Public Policy, the first endowed faculty chair, as well as the development of a distinguished visiting faculty program. Smith reflects on university-wide developments such as the hiring of Suffolk’s first provost and her role in advancing the identity of Suffolk as one university, not three individual schools. He concludes with recollections of his transition to the faculty, his committee assignments, important colleagues, and significant aspects of his career at Suffolk.https://dc.suffolk.edu/soh/1067/thumbnail.jp