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ON TORT LAW’S DUALISMS
No full textThe article discusses the theories of tort law put forward by Professors, John Goldberg, Benjamin Zipursky, and Catherine Sharkey. It argues that tort law operates on two levels: the private side focused on wrongs and redress, and the public side concerned with preventing harms and regulatory needs of society. It further emphasize that both aspects are crucial to understand tort law fully
All the Tools in the Toolbox: A Plea for Flexibility and Open Minds in Assessing the Costs and Benefits of Climate Rules
No full textVol. 39 Issue 2As the Biden Administration works on updating the social cost of carbon (SCC), some economists are urging a different approach, known as the “Marginal Abatement Cost” (MAC) method or the “target-consistent” approach. Rather than attempting to calculate all the damage caused worldwide by each ton of carbon dioxide released into the atmosphere, the MAC approach
instead asks: what is the highest amount of money per ton that society will need to be willing to pay if we are going to successfully meet greenhouse gas reduction targets? This approach has the virtue of avoiding the most intractable
complexities and uncertainties involved in estimating the SCC, including embedded ethical judgments about the degree to which the interests of future generations should be discounted in comparison to our own and the scope of the
relevant “society” across which climate damages should be measured.
Nonetheless, the MAC approach has come under fire from cost-benefit purists who argue, first, that it is inappropriate as a matter of good policymaking and, second, that it is prohibited by law. Both claims are at a minimum overstated and arguably outright wrong. As a matter of both legal mandate and good policy, the Biden Administration would do well to avoid the CBA orthodoxy that some commentators advocate. Instead, the Administration should as a matter of good policy—and can as a matter of law—make use of the rich variety of tools in the regulatory decision-making toolbox, including the MAC approach, in developing climate policy
The Politics of Constitutional Memory
No full textThose who sought votes for women made claims for liberty and equality in
the family on which constitutional law might now draw-but there is no trace
of their voices or claims in constitutional law. The Supreme Court scarcely
mentions the Nineteenth Amendment when interpreting the Constitution. Nor do
Supreme Court opinions mention those who led women's quest for political
voice or the constitutional arguments they made in support of women voting,
even though these arguments spanned two centuries. There is no method of
interpretation that the Justices employ with sufficient consistency to account for
this silence in our law.
This Article introduces the concept of constitutional memory to explain this
silence in our law. Constitutional interpreters produce constitutional memory
as they make claims on the past that can guide decisions about the future. It is
the role of constitutional memory to legitimate the exercise of authority; but
constitutional memory plays a special role in legitimating the exercise of
authority when constitutional memory systematically diverges from constitutional
history. Systematic divergence between constitutional memory and constitutional
history can legitimate authority by generating the appearance of
consent to contested status relations and by destroying the vernacular of resistance.
Though women contested their lack of political authority in the constitutional
order over two centuries, there is no trace of their arguments in
constitutional law.
But argument, inside and outside of courts, can counter the politics of memory.
Justices across the spectrum regularly make heterodox claims on the past.
Constitutional interpreters can invoke the voices of the disfranchised and the
concerns that the disfranchised brought to the democratic reconstruction of
America. Imagine how we might understand our Constitution in another generation
if we did
Democratizing Behavioral Economics
No full textVolume 39-3Behavioral law and economics (“BLE”)—arising from the insight that people make recognizable, systematic mistakes—has revolutionized policymaking. For example, in governments around the world, including the US, teams of experts seek to harness these insights, promising to do things like increase retirement savings. But there is a problem: economic experts do not look or think like the rest of the population. Their demographics and policy views are deeply unrepresentative.
This would be less troubling if the experts were merely helping people pursue the behavior that the people themselves would undertake, as was the case in traditional law and economics. However, the whole point of behavioral economics is that such behavior is often not in people’s interest. Rather, in making judgments about the right policy, BLE has erected a new, shaky structure, based on ad hoc and often unstated normative assumptions. The result risks merely enacting the policy preferences (or biases) of unrepresentative experts and thereby distorting policymaking.
We propose a new approach—democratic BLE—in which behavioral economists, rather than dictating what the right policy or action is, instead inform representative samples of ordinary people about the evidence, including specifically about their own behavioral biases, and let them decide for themselves. Those decisions, rather than experts’ opinions alone, then inform policymakers. Our approach harnesses the insights of behavioral economics, but in a way that lets the people themselves, rather than the behavioral expert, be the arbiter of the good life
Psychological Parenthood
No full textThe article focuses on psychological parent principle and which provides a unitary directive for reforming these (and other) flawed principles of family law. It mentions positive steps to ensure the material and psychological conditions necessary for successful parenting, and to families and to regulate working conditions to protect parental time with children. It also mentions commitment to ensuring that all families have access to the material foundations of family life
“Professional” Employers and the Transformation of Workplace Benefits
No full textVolume 39Workers in the United States depend on their employers for a host of benefits beyond wages and salary. From retirement benefits to health insurance, from student loan repayment to dependent-care spending plans, from disability benefits to family and medical leave, U.S. employers play a uniquely central role in the financial lives of their employees. Yet not all employers are equally willing or capable of serving as such financial intermediaries. Larger employers commonly offer more and better benefits than smaller employers. In recent years, so-called Professional Employer Organizations (PEOs) have pitched themselves as a private-sector solution to the challenges traditionally faced by smaller employers. PEOs have pioneered and marketed a “co-employment” model pursuant to which a business and the PEO agree to share certain employer rights and responsibilities, with the PEO taking on all of the human resources matters and the client-employer otherwise retaining control over the business.
While PEOs respond to long-standing challenges faced by smaller employers and have the potential to increase access to workplace benefits, this Article argues that they also introduce new and significant governance concerns that are not adequately addressed by the existing regulatory framework. Empirical evidence suggests that as currently structured, PEOs may not, in fact, provide “Fortune 500” benefits to employees at smaller companies and may instead lock participating employers into costly benefit bundles and expose them to the risk of unpaid employment taxes and health insurance claims. To protect participants in arrangements where PEOs provide key workplace benefits, this Article recommends strengthening and uniformly applying registration, disclosure and oversight requirements for all non-employer intermediaries, including PEOs. In the longer term, comprehensive retirement reform is needed to account for the transformation of workplace benefits in the United States
ASSESSING AFFIRMATIVE ACTION'S DIVERSITY RATIONALE
No full textEver since Justice Lewis Powell's opinion in Regents of the University of California v. Bakke made diversity in higher education a constitutionally acceptable rationale for affirmative action programs, the diversity rationale has received vehement criticism from across the ideological spectrum. Critics on the right argue that diversity efforts lead to "less meritorious" applicants being selected. Critics on the left charge that diversity is mere "subterfuge." On the diversity rationale's legitimacy, then, there is precious little diversity of thought. In particular, prominent scholars and jurists have cast doubt on the diversity rationale's empirical foundations, claiming that it rests on an implausible and unsupported hypothesis. To assess the diversity rationale, we conduct an empirical study of student-run law reviews. Over the past several decades, many leading law reviews have implemented diversity policies for selecting editors. We investigate whether citations to articles that a law review publishes change after it adopts a diversity policy. Using a dataset of nearly 13,000 articles published over a sixty-year period, we find that law reviews that adopt diversity policies see median citations to their volumes increase by roughly 23% in the ensuing five years. In addition to exploring the effect of diversity policies on median citations, we also explore the effect of diversity policies on mean citations. When doing so, our estimates are consistently positive, but they are largely not statistically significant at conventional levels. These findings have widespread implications. If diverse groups of student editors perform better than nondiverse groups, it lends credibility to the idea that diverse student bodies, faculties, and groups of employees generally perform better. We thus view these results as empirically supporting the much-derided diversity rationale--support that could prove critical as affirmative action confronts numerous threats
The Modern State and the Rise of the Business Corporation
No full textThis Article argues that the rise of the modern state was a necessary condition for the rise of the business corporation. A typical business corporation pools together a large number of strangers to share ownership of residual claims in a single enterprise with guarantees of asset partitioning. We show that this arrangement requires the support of a powerful state with the geographical reach, coercive force, administrative power, and legal capacity necessary to enforce the law uniformly among the corporation’s various owners. Strangers cannot cooperate on the scale and with the legal complexity of a typical business corporation without a modern state and the legal apparatus it supplies to enforce the terms of their bargain. Other historical forms of rule enforcement, such as customary law among closely knit communities and commercial networks like the Law Merchant, are theoretically able to support many forms of property rights and contractual relations but not the business corporation. We show that this hypothesis is consistent with the experiences of six historical societies: late imperial China, the nineteenth-century Ottoman Empire, the early United States, early modern England, the late medieval Italian city-states, and ancient Rome. We focus especially on the experience of late imperial China, which adopted a modern corporation statute but failed to see much growth in the use of the corporate form until the state developed the capacity and institutions necessary to uniformly enforce the new law. Our thesis complicates existing historical accounts of the rise of the corporation, which often emphasize the importance of economic factors over political and legal factors and view the state as a source of expropriation and threat rather than support. Our thesis has extensive implications for the way we understand corporations, private law, states, and the nature of modernity
MULTI-PARENT FAMILIES, REAL AND IMAGINED
No full textThe article presents the discussion on parentage reforms at the state level including multi-parent statutes. Topics include accommodating LGBTQ+-parent families and other families created through assisted reproduction; multi-parent families existed for decades in families with children conceiving through sexual procreation by different-sex couples; and actual arrangements of the family leading a child for splitting time across multiple households
ESG Investing: Why Here? Why Now?
No full textThis article seeks to shed light on the nature, purpose, and prospects of ESG investing. Along the way, it develops an explanation for why so-called "ESG" or Environmental, Social, and Governance principles suddenly have emerged to dominate the corporate governance and investing landscape. Clearly, the real and existential threat of climate change has galvanized the investing public into taking some sort of action. As such, I argue that the ESG movement reflects a significant libertarian turn in the history of American politics. This is because one naturally would think that government, rather than the private sector, would be the place to look for solutions to broad societal problems like social injustice and protecting the environment. The emergence of ESG investing and governance demonstrates a consensus that government lacks credibility and is not viewed by rational citizens as a likely source of solutions to these broad problems. In simple terms, government unresponsiveness and ineptitude have created a vacuum, and the ESG movement reflects a broad shift from primary reliance on government to primary reliance on the private sector as the source of solutions to broad social problems. Thus, ESG investing and governance can be explained, at least in part, as a response to the failure of government. People are turning to corporations for solutions to problems that are typically in the government's domain because government has failed. This explains the "E" and the "S" in ESG, but it does not explain the "G," the governance component. Besides lack of faith in government, the emergence of ESG is attributable to the fact that the ESG movement focuses intensely on allowing management to govern for the "long term." Focusing long term serves the private interests of important political groups such as organized labor and corporate management because it takes pressure off management to focus on profit maximization or on objective criteria such as share prices for evaluating managerial performance. In addition, ESG governance is a new form of an anti-takeover device and a convenient tool for enabling ineffective management to escape accountability. Thus, the recent success of the ESG movement is attributable to the confluence of the private interests of management with the public's loss of confidence in the ability of government to address, much less to solve, the important environmental and social problems of the day. This loss of confidence has played conveniently into the hands of corporate managers who wish to avoid accountability. While the ESG movement has found success in attracting investors, I argue that it will not be successful in ameliorating the fundamental problems of global warming and income inequality that it purports to address. In fact, much, if not most of ESG investing is "cheap talk" in light of three fundamental realities: (a) corporate managers are overwhelmingly compensated by bonuses, stock, and stock options, all of which are forms of compensation that reward strong shareholder performance rather than the achievement of ESG objectives; (b) activist investors, particularly activist hedge funds and other elements of the market for corporate control, pose an existential threat to managers who ignore the shareholder wealth maximization paradigm; and (c) corporations are run by or under the direction of their boards of directors, who are elected exclusively by shareholders