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The Supervisory Power of State Supreme Courts
No full textState supreme courts are currently center stage as they face some of the most important issues of our time. But nearly all of the attention is focused on their ability to interpret state constitutions to provide rights guarantees that the U.S. Supreme Court has diminished or eliminated from the Federal Constitution. While important, judicial review is but one instance of a state high court’s authority. Their supervisory power—the primary source of judicial administrative authority—has served as a vital source of policymaking power to safeguard individual rights and enhance the public good. Supreme courts have relied on their supervisory power to reimagine state criminal justice systems, reduce homelessness, strengthen voting rights, expand protections for immigrants, and more. Despite its significance, this feature of state court practice has gone virtually unnoticed. As advocates increasingly look to state courts to address more and more of society’s complex and consequential issues, this distinctive aspect of their power is worth exploring.
This Article unpacks the supervisory power by mapping its sources, applications, and limits. The supervisory power has a basis in all fifty state constitutions and enables supreme courts to oversee their judiciary’s workload and operations. But as this Article shows, high courts are using this power beyond the humdrum of judicial administration to enhance substantive rights and remedies, facilitate their law development and agenda-setting capabilities, and mediate interbranch frictions. This Article’s core claim is that these more expansive applications of the supervisory power are generally defensible based on the evolution of state judiciaries and supreme courts\u27 unique roles in state governments. The twentieth century saw a dramatic reimagining of state high courts from inferior instruments for the other branches to powerful, coordinate members of the state policymaking apparatus. In addition to overseeing the judiciary’s operations, the supervisory power thus plays an important role in a high court’s ability to contribute to state governance.
This account of the supervisory power is broad but not unlimited. The Article highlights the supervisory power\u27s internal and external limits and sketches its metes and bounds to help frame its future applications. The Article then considers this judicial practice within larger debates on judicial policymaking and state constitutional structure. It engages with critiques of a more active judicial role and lawmaking powers. It explains that the key institutional assumptions behind such assessments do not map so easily onto the unique structure of state judiciaries. Stepping back, the Article encourages a broader but more nuanced view of state judicial power and the function of state high courts that wield it
Ethical Issues in Pandemic Prevention, Preparedness, and Response
No full textPandemic policies raise complex ethical challenges, as well as scientific and technical ones. This chapter examines four critical areas where ethical analysis is essential for effective pandemic prevention, preparedness, and response: spending decisions, clinical research, restrictions on rights and freedoms, and fair allocation of scarce medical resources.
Spending on pandemic prevention, preparedness, and response often involves trade-offs with other societal priorities, such as education, infrastructure, and environment. Navigating these trade-offs requires careful consideration of opportunity costs and distributional impacts.
Rights and freedoms can likewise present difficult trade-offs when pandemic policies restrict individual liberties, requiring clear goals and proportionate responses that consider differential impacts across populations.
Clinical research during pandemics must maintain ethical standards while addressing urgent public health needs. This chapter illustrates this imperative by exploring how ethical standards apply to challenge trials and to randomized studies of policy interventions.
Finally, scarce pandemic countermeasures like vaccines and therapeutics demand fair allocation frameworks that serve four core objectives: benefiting people, mitigating disadvantage, ensuring equal concern, and recognizing reciprocity
Taylor Swift and Grimes\u27s Competing Versions of Music Ownership: Copyright Protections Versus Creative Innovation
No full textThe Legitimation of Shareholder Primacy
No full textWe are living in a polarized era, and corporate governance is no exception. With controversies raging over environmental, social, governance, (ESG) investing, diversity, equity and inclusion initiatives, climate change as an investment concern, and even Elon Musk\u27s pay package at Tesla, it seems as though corporate governance has never been so starkly divided along partisan lines.
The divisions have threatened to spill over to Delaware, the preferred jurisdiction for incorporation in the United States. Several high profile cases—including those involving Elon Musk—have called Delaware\u27s neutrality into question. Commenters have argued that Delaware\u27s newly politicized approach threatens to splinter the corporate governance universe, driving corporations to other states that are more reliable (or that follow different corporations\u27 preferred politics).
This Article argues that, in some ways, the critics are correct: Delaware law is on a path toward politicization. But it is not because of any particular bias of its judges or its law; to the contrary, the pressures toward politicization are inherent in any system that purports to guide how vast aggregations of capital will be deployed. What is unique about the current moment is that the trends toward politicization result from tensions inherent in shareholder primacy. Shareholder primacy was conceived, in large part, as a compromise to keep politics out of business management; what the modern controversies reveal is the futility of that effort