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Of Chameleons and ESG
No full textEver 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
A Long Way from Brady: The Impact of Digital Infrastructure & E-Discovery Practices on State Discovery Obligations in Criminal Cases
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The Structure of U.S. Climate Policy
Get PDFUrgent emission reduction and community adaptation efforts are necessary to avert catastrophic climate-change harms. To assess our nation’s progress toward such efforts, this Article develops a comprehensive structural analysis of U.S. climate policy at the federal, state, and local levels. It observes that current climate policies reflect disparate federal, state, and local strategies around emissions regulation, emission reduction subsidies, adaptation, and liability approaches. The Article then analyzes the dynamics between federal, state, and local strategies in these policy areas.
This examination leads to some surprising conclusions. Under current policy alignments, further emission regulation measures do not appear to be realistic policy options. Though such regulatory measures have long been considered the most efficient climate interventions, this analysis suggests they have little near-term prospect for further deployment. Rather, current dynamics among the states and federal government indicate that previously second- and third-choice policies, like subsidies and liability measures, have greater potential for expansion. Thus, these less-favored policy approaches may represent the best hopes for pressing emission reduction efforts.
Further, the analysis suggests that while most climate adaptation policy is implemented at the local level, federal adaptation policies require the more immediate attention. Because federal adaptation policies reflect a deferential funding strategy, where the federal government attempts to match support with state and local policy preferences, altering federal programs to better recognize state and local choices will enhance adaptation efforts at all levels of government
Second Amendment Immigration Exceptionalism
Get PDFThis Essay critiques the decision to uphold federal gun restrictions on unlawfully present noncitizens on the basis of immigration exceptionalism. It argues that courts should avoid applying bespoke constitutionalism to criminal laws, including gun laws, simply because the law regulates noncitizens. This Essay shows why such exceptional modes misapprehend long-decided Supreme Court cases and well-established legal doctrine. Further, it warns that an exceptional approach to Second Amendment claims by unlawfully present noncitizens cannot be cabined to either firearms or the unlawfully present. Rather, it portends a wider gulf in constitutional protections for all noncitizens across a variety of fundamental criminal and civil rights
Facing the Music: How the FACE Act Harms, Rather than Helps, the Post-Dobbs Abortion Movement
Get PDF“Down Where the Grass Grows”: Municipal Abortion Policies After Dobbs
Get PDFWhen the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization referred future decisions about abortion policies to “elected representatives and the people,” there is no doubt that local governments were included in the designation. In fact, since the 1970s, local governments have been active in pursuing a range of abortion policies in their jurisdictions—both for and against abortion access—that may be in tension with their state governments. Because the ideological orientations of state and local governments often conflict, state preemption is a frequent threat hanging over these local initiatives. There are examples from both sides of the political spectrum, but it is more often conservative state legislatures that act to preempt more progressive policymaking by municipalities. Yet, recent history shows that aggressive preemption by states has not stopped, and will not stop, local governments from weighing in and pursuing policies that reflect local values. Even when local pro-choice policies have no legal effect, they can educate, support organizing, provide moral support, and assuage fear of seeking critical healthcare. On the anti-abortion side, symbolic local policies are often part of a strategic national agenda. The breadth and depth of interest in abortion access after Dobbs provides an occasion for local debates that can engage, energize, and mobilize voters to challenge state preemption practices. If pro-choice advocates lean into democracy and show up “down where the grass grows,” their efforts could have a substantive impact as well