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Boden Lecture: Of Chameleons and ESG
Get PDFEver since the rise of the great corporations in the late nineteenth and early
twentieth centuries, commenters have debated whether firms should be run
solely to benefit investors, or whether instead they should be run to benefit
society as a whole. Both sides have claimed their preferred policies are
necessary to maintain a capitalist system of private enterprise distinct from
state institutions. What we can learn from the current iteration of the debate—
now rebranded as “environmental, social, governance” or “ESG” investing—
is that efforts to disentangle corporate governance from the regulatory state
are futile; governmental regulation has an inevitable role in structuring the
corporate form
Armed and Under the Influence: The Second Amendment and the Intoxicant Rule After Bruen
Get PDFIn 2001, the Michigan Legislature passed a law prohibiting the possession or use of a firearm by a person under the influence of alcoholic liquor or a controlled substance. Presumably the legislature thought it necessary to prevent individuals from possessing a firearm while under the influence of drugs or alcohol. One study has indicated that alcohol misuse is keenly associated with firearm ownership, risk behaviors involving firearms as well as risk for perpetrating harm to one’s self or others. Researchers also found that an estimated 8.9 to 11.7 million firearm owners binge drink in an average month. In an attempt to combat gun violence and alcohol use, researchers have suggested restricting firearms for those who misuse alcohol or drugs. In light of the data, it is not unreasonable to think that the Michigan Legislature sought to prevent gun violence in connection with alcohol and drug use. However, such policies are clearly at odds with the original understanding of the Second Amendment.
This Article argues that the intoxicant rule as a limitation on one’s Second Amendment rights is antithetical to the original public meaning of the Constitution. More simply, this Article argues that laws criminalizing and further restricting an individual’s right to bear arms due to intoxication are unconstitutional and directly contradict the original public meaning and tradition of the Second Amendment. Thus, this Article undertakes to explain that the foundational case on point, New York State Rifle & Pistol Ass’n v. Bruen, provides a clear basis for overturning the intoxication rule as an impermissible burden on the right to bear arms as protected by the Second Amendment
How Remote Support Technology Can Alleviate the Caregiver Shortage
Get PDFSince the COVID-19 pandemic, nearly every sector of the economy has struggled with workforce shortages, and one of the most severely impacted industries is the long-term care services industry. Indeed, this industry has historically been unable to attract and retain enough caregivers to meet the needs of its clients and the pandemic only exacerbated this problem. Those who rely on long-term care services are typically members of some of society’s most vulnerable populations such as frail elders and individuals with disabilities. Not having enough caregivers adversely affects these populations as care staff shortages are more likely to lead to abuse and neglect.
This comment suggests that national reforms are needed to address the caregiver shortage. First, this comment discusses the relevant historical and legal background leading to the caregiver shortage. Next, this comment describes the extent of the caregiver shortage and how it is detrimental to those relying on long-term care services. Lastly, this comment argues that remote support technology can help alleviate the caregiver shortage and that the federal government should reform the Medicaid Act to promote the spread of this technology
Delayed Emergency Care: How Professional Liability Insurance Affects Doctors’ Decisions After \u3ci\u3eDobbs\u3c/i\u3e and What Needs to Change
Get PDFIn 2022, the U.S. Supreme Court overruled Roe v. Wade, ushering in a new era for abortion regulation. In some states, like Wisconsin, abortion was instantly re-criminalized. In rare but serious instances, health care providers faced the dilemma of deciding whether to delay care for emergency abortion services to save the life of a mother, for fear of criminal prosecution. As a result, some providers wondered if their professional liability insurance plan would provide a legal defense in the event of a criminal charge of illegally performing an abortion, though the facts may show it was to save the life of a mother
The Power of All: Tort in the Age of Constitution
Get PDFLife in a multicultural nation can be fraught. The United States is a case in point, with hostile tension between members of competing identity groups playing out today on streets, in offices, and across the media. Modern Americans assume that bridging race, gender, and class inequity is the stuff of public—constitutional—law. This assumption follows the lead of modern American lawyers, who migrated to this body of law just as historians, sociologists, and economists began to insist that the private law of tort was exclusively concerned with the accidental physical harms inevitable in a modern economy. According to this econostory, tort has no role to play in addressing individual dignitary harms inevitable in a multicultural society. Joseph Ranney’s book, The Burdens of All: A Social History of American Tort Law, is one of the most deeply researched and reasoned entries in this canon, and was the rightful centerpiece of Marquette University Law School’s 2023 Conference, Tort Law: What Can We Learn from Where It Has Been? In this response, originally offered as a keynote talk at that conference, I celebrate Ranney’s achievement. But I also challenge him and fellow econohistorians of tort to reckon with the lost origins of American personal injury law. It turns out that in the pre-Industrial, Founding era, localized juries drawn from the community were often asked to intervene when women, enslaved people, and the poor claimed that neighbors degraded them because of their social characteristics. These claims were not uniformly successful, but they were a legal invitation for the community to examine its social norms and adjust them to stigmatize disfavored interpersonal conduct. As I recount, this private dignitary forum was dismantled when tort was reimagined as a quasi- regulatory system to optimize resource allocation. The quest for individual dignity was ultimately reassigned in the twentieth century to Article III courts, which updated and expanded their reading of the Constitution to integrate members of suspect classes more fully into public life. But while constitutional pronouncements can force system-level equity rules for schools, workplaces, police forces, and the like, they cannot touch the private worldviews of the people found in those systems. The Burdens of All acknowledges that American tort has always fluctuated to manage the social tensions of the day. I suggest it may be time for a twenty-first-century fluctuation. Excavating tort’s original purpose as an instrument of interpersonal dignity provides a template for building out a robust private law of social justice in the modern era
Sexual Orientation at the Crossroads
Get PDFThe decision of the U.S. Supreme Court in the case of Bostock v. Clayton County that sexual orientation is included in the concept of “sex” in the non-discrimination provisions of the Civil Rights Act of 1964 is historically indefensible. The Civil Rights Act was initiated by President John F. Kennedy to combat racial discrimination in the workplace and the word “sex” was included in the Act by a “claque of Southern Congressmen” as part of a filibuster attempt to prevent its enactment. It was accepted by proponents of the Act on the instructions of President Johnson merely to avoid the filibuster. No one in his or her right mind believed in the 1960s that women, let alone members of the LGBT community, should be treated equally in labor relations. However, prohibiting discrimination based on sexual orientation can have a great influence on the trend in the United States to treat LGBT as “normal and natural, satisfying and right.