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Stakeholder Capitalism in the Time of COVID
No full textVolume 40, Issue 1This Article tests the claims of supporters of stakeholder capitalism (“stakeholderism”) in the context of the COVID pandemic. Supporters of stakeholderism advocate encouraging and relying on corporate leaders to use their discretion to serve stakeholders such as employees, customers, suppliers, local communities, and the environment. The pandemic followed and was accompanied by peak support for, and broad expressions of commitment to, stakeholderism from corporate leaders. Nonetheless, and even though the pandemic heightened risks to stakeholders, we document that corporate leaders negotiating deal terms failed to look after stakeholder interests.
We conduct a detailed examination of all the 800 billion. We find that deal terms provided large gains for the shareholders of target companies, as well as substantial private benefits for corporate leaders
Equity, Morality and Law in The Nature of the Judicial Process
No full textVol. 34-1For equity lawyers over the big pond, Cardozo is hero: one of a few judges whose fame has survived the great rift that opened between English and American law when the latter embraced fusion between equity and law and the consequent decline in the study of equity as an independent body of law. Cardozo’s extensive engagement with doctrines whose origins lie in equity (even if this has been long forgotten in his native country), the colorful language in which he immortalized them, and the bold ways in which he developed some of the central themes of modern equity—like the fiduciary relationship and the constructive trust—enshrined him as a force to be reckoned with in the field of equity. It is no wonder that a man of “[t]he most delicate conscience and the nicest sense of honour” like Cardozo, was drawn to equity as a major source of inspiration.1 In this paper I wish to argue that the jurisprudence of equity is a key to understanding his treatise on the art of judging, The Nature of The Judicial Process (NJP). While the text is too nuanced and rich to be placed firmly in one tradition or school of thought, I argue that the jurisprudence of equity with its highly sophisticated engagement with the issues that are of concern to Cardozo, and the historical perspective it offers to the pragmatically-minded jurist, serves as an essential foil for the work he aims to do in the text
FREDERICK DOUGLASS AS CONSTITUTIONALIST
No full textCourt Cases:
In re Anastaplo
Dred Scott v. Sandford
Konigsberg v. State Ba
Orthodox Christianity and the Russo-Ukrainian War
No full textVol. 48In the Russo-Ukrainian war, Orthodox Christianity and the battle for
ecclesiastical jurisdiction mirror both international and domestic politics. This
Note argues that the creation and recognition of the independent Orthodox
Church of Ukraine in 2018–2019 should be understood as a phenomenon of
international law. It outlines the history of the Russo-Ukrainian Orthodox
schism, contextualizes it in the broader landscape of international political
developments, and explores how religious conflict in Ukraine reveals the
potential significance of transnational religious institutions in influencing
international norms, developments, and law
INTRODUCTION: Medical-Legal Partnerships: Equity, Evolution, and Evaluation
No full textThe COVID-19 pandemic laid bare systemic inequities shaped by social determinants of health (SDoH). Public health agencies, legislators, health systems, and community organizations took notice, and there is currently unprecedented interest in identifying and implementing programs to address SDoH. This special issue focuses on the role of medical-legal partnerships (MLPs) in addressing SDoH and racial and social inequities, as well as the need to support these efforts with evidence-based research, data, and meaningful partnerships and funding
Benjamin Cardozo and American Natural Law Theory
No full textVol. 34-1Unlike many Supreme Court Justices, Benjamin Cardozo led a rather humdrum existence outside of the courthouse, and it is quite clear that he was not especially interested in or adept at all versions of the game of social life. One wonders whether Cardozo was a man who was comfortable in his own skin. The Nature of the Judicial Process tells us that at least in one very important dimension of his life, he was indeed comfortable in his own skin, he was his own man, and he was quite unapologetic for who he was. The book and the lecture series that spawned it reveal a person supremely comfortable reflecting on what he did in his job, all in the knowledge that what he did in his job was good and right and indeed exemplary for those who hold that position. Sufficiently exemplary, indeed, to warrant a whole book of reflections on what he did. One might view this as immodesty on Cardozo’s part, but I view it quite the opposite way. Here was someone for whom the job of legal interpretation and appellate judging was a special comfort zone. And even within that comfort zone, there were multiple and quite sincere expressions of humility. Cardozo saw himself as a public servant lucky enough to have an interesting job that was of considerable importance to his state and his nation
Looking for the Common Good with Adrian Vermeule and William Shakespeare
No full textVol. 34:2In a March 2020 essay for The Atlantic, Harvard Law professor Adrian Vermeule called on fellow conservative legal thinkers to renounce the bedrock principle on which Originalism rests—the separation of law and morality. Instead of placing legal reasoning inside an airtight box into which no moral or political exigencies may enter, Vermeule counseled the conservative legal movement to permit moral and legal claims to mingle freely, to drop the drab positivist hermeneutics and embrace a vibrant form of natural law oriented to the “common good.” The essay provoked intense reactions, and in the process Vermeule—an administrative lawyer theretofore known primarily for his robust if increasingly lonely conservative defense of Chevron deference—became something of a legal celebrity on the integralist right. His recent attempt to expand his 2020 essay into a book entitled Common Good Constitutionalism is the subject of this Article. I read Vermeule’s book against Shakespeare’s The Merchant of Venice in an attempt to draw out some of the unsettling ahistorical patness at the center of Vermeule’s theory. Where Vermeule assumes that legal questions can have a single correct solution coterminous with the common good, The Merchant of Venice provides that legal subjects, in their ineradicable and splendid human inconsistency, will have no trouble suggesting others
The Logic and Limits of the Federal Reserve Act
No full textVolume 40, Issue 1The Federal Reserve is a monetary authority subject to minimal executive and judicial oversight. It also has the power to create money, which permits it to disburse funds without drawing on the U.S. Treasury. Since 2008, it has leveraged this power to an unprecedented extent. It has rescued teetering financial conglomerates, purchased trillions of dollars of mortgage-backed securities, and opened numerous ad hoc lending facilities to support ordinary businesses, nonprofits, and municipalities.
This Article identifies the causes and consequences of the Federal Reserve's expanded footprint by recovering the logic and limits of its enabling act. It argues that to understand the Federal Reserve—including its independence, expansion, and capacity—it is necessary first to understand the statutory scheme for money and banking. Congress chartered investor-owned banks to issue most of the money supply and established the Federal Reserve for a limited purpose: to administer the banking system. Congress equipped the Federal Reserve with an interrelated set of tools to achieve a specific objective: ensure that the banking system creates enough money to keep economic resources productively employed nationwide. The rise of shadow banks—firms that issue alternative forms of money without a bank charter—has impaired the Federal Reserve’s tools. As the Federal Reserve has scrambled to adapt, it has taken on tasks it was not built to handle. This evolution has prompted calls for the Federal Reserve to tackle even more policy challenges. It has also undermined the Federal Reserve’s ability to effectively achieve its core goals. An overloaded Federal Reserve is understandable, but not desirable. Congress should modernize the Federal Reserve Act, and the banking laws on which it depends, to improve monetary administration in the United States
Free Speech Versus the First Amendment
No full textThe digital age has widened the gap between the judge-made doctrines of the First Amendment and the practical exercise of free speech. Today, speech is regulated not only by territorial governments but also by the owners of digital infrastructure. This has made First Amendment law less central and the private governance of speech more central. When the free speech interests of digital companies and their end users conflict, the major beneficiaries of First Amendment rights are likely to be the former and not the latter. Digital companies will try to use the First Amendment to avoid government regulation, including regulation designed to protect the free speech and privacy interests of end users. In response, internet reformers on both the left and the right will attempt to de-constitutionalize internet regulation. They will offer legal theories designed to transform conflicts over online speech from questions of First Amendment law into technical, statutory, and administrative questions. In the United States, at least, de-constitutionalization is the most likely strategy for imposing public obligations on privately-owned digital companies. If successful, it will make the First Amendment less important to online expression. The speed and scale of digital speech have transformed how speech is governed. To handle the enormous traffic, social media companies have developed algorithmic and administrative systems that do not view speech in terms of rights. Accompanying these changes in governance is a different way of thinking about speech. In place of the civil liberties model of individual speech rights that developed in the twentieth century, the emerging model views speech in hygienic, epidemiological, environmental, and probabilistic terms. Algorithmic decision-making and data science also affect how people think about free expression. Speech becomes less the circulation of ideas and opinions among autonomous individuals and more a collection of measurable data and network connections that companies and governments use to predict social behavior and nudge end users. Conceived this way, speech is no longer special; it gets lumped together with other sources of measurable and analyzable data about human behavior that can be used to make predictions for influence and profit. Meanwhile, the speed and scale of digital expression, the scarcity of audience attention, and the proliferation of online propaganda and conspiracy theories have put increasing pressure on the standard justifications for freedom of speech, including the pursuit of truth and the promotion of democracy. Th e gap between the values that justify freedom of speech and what the First Amendment actually protects grows ever wider. In response, some scholars have argued that courts should change basic First Amendment doctrines about incitement, defamation, and false speech. But it is far more important to focus on regulating the new forms of informational capitalism that drive private speech governance and have had harmful effects on democracy around the globe. Th e digital age has also undermined many professions and institutions for producing and disseminating knowledge. Th ese professions and institutions are crucial to the health and vitality of the public sphere. Changing First Amendment doctrines will do little to fi x them. Instead, one must revive, reestablish and recreate professional and public-regarding institutions for knowledge production and dissemination appropriate to the digital age. Th at task will take many years to accomplish