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Sacred Nutrition: Asserting Indigenous Sovereignty and Rights of Women and Nature to Ensure the Right to Food in the United States
Full text linkThis Paper is a provocation to move beyond a standard human rights and right to food framework to encourage scholars, activists, and political leaders to engage in full throttle societal transformation. Ending hunger in the United States demands nothing less. The modern human rights framework is enshrined in the modern nation-state system that is rooted in the transatlantic slave trade, colonization, and genocide.1 Three primary ways in which these roots took hold were through land theft, rape, and starvation. Hence, to assert that integrating the right to food and freedom from hunger into nation-state constitutions or into national plans to end hunger without significantly altering the structure of the nation-state will be fundamentally ineffective. Nation states currently depend on keeping people hungry, especially women and children.2 If this is the case, then we ought to consider new ways of envisioning and devising a world in which all people are free from hunger and have good nutrition that supports human and more-than human flourishing. To do so demands we address food insecurity at its roots.
This Paper relies on twenty-five years of empirical research with Black women, Native communities, and other groups of color, as well as on the scholarship of Black and Native thinkers. In doing so, the Paper outlines how rape, colonization, racism, and gender discrimination continue to generate food insecurity and hunger, and how incorporating a broad view of the right to food to support rights of women, Indigenous peoples, peoples of African descent, and the rural poor are integral to the right to food. Finally, this Paper shows that societal transformation can only be made possible through providing reparations to descendants of people who were enslaved, respecting and repairing treaty rights with Native nations, and changing human beings’ relationship with the natural world from viewing food as commodity to revering food and the natural world as kin with equal standing to humans. In doing so, we can meet the challenges of the climate catastrophe and promote resilience of future generations
Assemblages and Actor Networks in the Borderlands - The Apposition of Reproductive Rights along the Mexican-American Border
Full text linkIn 1971, Sarah Weddington argued Roe v. Wade as a class action on behalf of pregnant women living in Texas, many of whom, including herself had to flee the State to obtain an abortion in Mexico. In 2021, Texas enacted S. B. 8, otherwise known as the Texas Heartbeat Act, which created a private cause of action for injunctive relief and statutory damages awards against any person assisting in and any physician accused of performing an abortion, thus reigniting the cross-border flows that historically have made Mexico a haven for runaway enslaved people and pregnant persons heading south to freedom. The Supreme Court of the United States discussed S. B. 8 and its effects in the context of a pre-enforcement challenge invoked in Whole Woman\u27s Health v. Jackson. Using social science and philosophy understandings of Assemblage Theory and Actor-Network Theory, Professor Madeleine Plasencia offers a novel socio-legal theory for understanding how law and legal interpretation configure complex actor-network and assemblages connecting multiple contiguous political territories, creating a meta version of networks bridging Texas, Mexico, and parts between and beyond. Moreover, since S. B. 8 does away with traditional requirements of nexus and standing to sue, it outsources enforcement of its attack on reproductive rights to the world, raising vigilantes to officially sanctioned status, displacing virtuous actor-networks aimed at assisting pregnant persons with vicious networks of surveillance, thus reconstituting preexisting actor-networks to produce autopoietic systems of domination powered by pitting neighbor contra neighbor.
To understand the full impact of Whole Woman\u27s Health v. Jackson and state laws such as S. B. 8, Plasencia theorizes the operation of the law from the perspective of the actor-networks it constitutes and reconstitutes, how these reconstituted assemblages activate new actors from fetal heartbeat actants to doctor-nurse-reporters, donors, neighbor-snitches, and recalcitrant acompañantes, and how these actor-networks, generate new social relations of power and vulnerability that are virulent and vicious rather than supportive and compassionate
Board Diversity Is Here to Stay: Extrajudicial Avenues
Full text linkBoard diversity laws have become a focus of corporations, lawmakers, and courts across the country as constitutional challenges to the policies continue to be raised. California is one of the first states to implement statutes relating to board diversity requirements for publicly held corporations within the state. Nasdaq has followed in similar footsteps, implementing new rules that require a certain number of diverse members on boards for companies listed on the exchanges or a statement explaining a lack thereof. Supporters of the board diversity laws may want to lean on arguments made upholding affirmative action policies within the university system. But that inclination has benefits and risks.
Affirmative action policy could be used to show the potential effect these board diversity laws could have on corporations. The affirmative action data could be beneficial as there are studies in education that suggest the benefits of diverse schools are translatable to other contexts. Because little-to-no data about the effect diversity on business outcomes exist, decades of affirmative action data fill an important gap. At the same time, affirmative action policy might not be the most stable moor to tie a ship. During the October 2022 term, the originalist-leaning Court signaled it is near to striking down affirmative action policies in higher education. This was confirmed by the Court’s decisions on June 29, 2023.
This Note predicts the decision could have a ripple effect on all board diversity related statutes. As affirmative action policies are struck down, policy proponents must distinguish board diversity statutes from affirmative action policies to survive the Court’s scrutiny. The path forward will require reliance upon empirical evidence, self-governance of boards and corporations, and for the rule makers at the SEC to step in and take the matter into their own hands
Puerto Rico: The Island of Infringement? An Analysis of The Intersectionality of Eleventh Amendment Sovereign Immunity and Federal False Endorsement Claims
Full text linkThis Note delves into the complex legal landscape of Puerto Rico’s application of sovereign immunity in the context of federal false endorsement claims, focusing particularly on the recent case involving the unauthorized use of Hall of Fame baseball player Roberto Clemente’s name and likeness. It critically examines the intersectionality of Eleventh Amendment sovereign immunity with the Lanham Act’s Section 43(a), highlighting the challenges faced in enforcing intellectual property rights within unincorporated territories of the United States.
The analysis begins by exploring the historical basis of sovereign immunity and its evolution from common law to the intricacies of the Eleventh Amendment. It then shifts to discuss the unique political and legal status of Puerto Rico, emphasizing its impact on the application of sovereign immunity in modern jurisprudence. The core of the Note addresses the litigation surrounding the misuse of Roberto Clemente’s name in government-promoted products, positing that Puerto Rico’s status and federal laws provide a unique legal framework that complicates the otherwise straight-forward application of sovereign immunity.
Further, the Note assesses the implications of recent judicial decisions that may influence the ongoing debate over Puerto Rico’s sovereign immunity and its capacity to engage in commerce that infringes upon intellectual property rights. It argues for a reevaluation of traditional sovereign immunity in the context of federal territories to better align with the realities of modern intellectual property law and commercial practices.
Ultimately, this Note advocates for a legislative and judicial reconsideration of how sovereign immunity is applied in territories like Puerto Rico, particularly in cases involving intellectual property. The Note concludes with recommendations for clearer guidelines that reconcile the need for sovereign immunity with the protection of intellectual property rights, suggesting potential judicial and legislative reforms to address these complex issues
Failure to Influence: Legislation Requiring Social Media Influencers to Disclose their Retouched Images will not Address Youth Body Image Concerns
Full text linkIn 2013, Israel’s Act Limiting Weight in the Modelling Industry first came into effect, requiring advertisers to disclose when images of commercial models have been digitally altered. The Act, which was the first of its kind, has come to be known as Israel’s “Photoshop Law” and was designed to help models maintain healthy weights and to ensure transparency in fashion advertising. Now, in response to growing concerns over body image issues linked with youth social media consumption, several nations around the world, including Norway and the United Kingdom, have proposed or enacted regulations that require social media influencers to add disclaimer labels to retouched images of their body in promotional posts. The prevalence of social media among youth has been heavily associated with body dissatisfaction and disordered eating, as adolescents are constantly exposed to unrealistic body standards. As government entities intend to address these issues through greater transparency by influencers online, it is unlikely that such laws will be practical or enforceable in the broad landscape of social media, thus ultimately failing to improve body image issues
The Government Speech Doctrine Ate My Class: First Amendment Capture and Curriculum Bans
Full text linkBecause of the government speech doctrine, public school curriculum restrictions like “Don’t Say Gay” mandates and bans on teaching critical race theory may escape free speech review. This exemplifies “First Amendment capture.” The term “capture” comes from “agency capture,” which occurs when regulated entities effectively gain control over the agency meant to oversee them. First Amendment capture occurs when speech becomes controlled by the government when the Free Speech Clause should be regulating the government.
Generally, laws that censor content trigger strict scrutiny under the Free Speech Clause. Curriculum bans, however, may trigger no scrutiny at all. Under the government speech doctrine, government speech is not subject to any free speech scrutiny. Teachers will struggle to challenge restrictions about what they may teach in the classroom because their speech “pursuant to official duties” is considered government speech. Likewise, students may not be able to challenge these restrictions on what they are allowed to learn if curricular decisions are deemed government speech—a possibility given unclear rules for evaluating censorship of public school curriculum. Although some lower courts have interpreted Supreme Court precedent to find that curriculum decisions violate the Free Speech Clause if motivated by political or partisan reasons rather than legitimate pedagogical ones, others have concluded that the Free Speech Clause does not apply because curriculum decisions represent government speech.
This Essay argues that the government speech doctrine overreaches in at least two ways. First, it classifies as “government speech” speech that might actually be mixed speech—that is, speech with both government and private speakers. Second, it classifies as “government speech” streams of speech that the audience has as much a stake in, if not more, than the speaker. The Free Speech Clause, after all, protects the free flow of speech, not just speakers. In both cases, the Essay concludes, the speech should undergo some level of Free Speech Clause review
Piercing the Shield of U.C.C. Article 4A: \u3cem\u3eEstate of Levin v. Wells Fargo Bank’s,\u3cem\u3e Implications for Terrorism Victims’ Attachment of Blocked Electronic Wire Transfers Originating from State Sponsors of Terrorism
Full text linkThis Piece examines how ambiguity in the property interests that would be subject to attachment under section 201 of the Terrorism Risk Insurance Act (“TRIA”) and section 1610(g) of the Foreign Sovereign Immunities Act (“FSIA”) has affected efforts by victims of terrorism to fulfill their monetary judgments, especially in light of courts’ use of Article 4A of the Uniform Commercial Code to fill the definitional gap. This Piece focuses on a recent D.C. Circuit decision, Estate of Levin v. Wells Fargo Bank, N.A., analyzing its implications for terrorism victims holding monetary judgments to attach blocked electronic funds transfers (“EFTs”) originating from state sponsors of terrorism. Estate of Levin created a new circuit split with the Second Circuit.
This Piece proceeds in three parts. Part I traces the FSIA’s history and locates TRIA within a larger Congressional effort to expand terrorism victims’ access to restitution via a series of FSIA amendments. It then explains how Congress’s failure to define the property interests that would be subject to attachment under TRIA section 201 and FSIA section 1610(g) has resulted in divergent efforts by courts to fill in the gap using federal interstitial lawmaking and state law. Part II explains the Second Circuit’s application of the New York U.C.C. Article 4A to blocked funds. It then discusses the main points of contention arising from Estate of Levin’s split from the Second Circuit, as well as Estate of Levin’s concurring opinion. Part III argues that Congress should intervene by amending TRIA section 201 and FSIA section 1610(g) to define EFT ownership interests using tracing and agency principles
Human Capital Disclosure & Corporate Governance: The New Evidence
No full textThis Article explores the evolution of human capital disclosure-firm-supplied information about various workforce-related matters-as a factor in contemporary corporate governance. Regulatory and nonregulatory developments from recent years have upended longstanding practices and generated extensive new evidence. Most notably, the Securities and Exchange Commission (SEC) adopted a human capital management ( HCM ) disclosure mandate in 2020, which, though long overdue, was criticized from the outset for its modest scope and lax design. In the meantime, courts have taken a renewed interest in board of directors\u27 oversight responsibilities in a number of areas, including HCM, while labor\u27s power has unexpectedly increased in some areas and decreased in others. HCM-focused shareholder proposals have proliferated and now cover a range of heretofore unexplored topics. This dynamic new landscape raises important analytical and normative questions: Has the SEC\u27s disclosure intervention from 2020 been effective and, if not, what should a revised HCM disclosure framework look like? More broadly, does the increased visibility of labor in corporate filings indicate that its role and status within corporate governance, which had been static for decades, have now changed?
To answer these questions, the Article examines six complementary types of evidence selected through an original mixed methods research design-a methodological approach popular in the social and behavioral sciences but underutilized in corporate law. The new evidence includes: (1) a meta-analysis of large-scale quantitative studies examining the incidence and characteristics of HCM disclosure; (2) hand-collected data from the SEC review process for initial public offering ( IPO )filings; (3) an original case study showing the existence of material disclosure gaps in regulatory filings; (4) evidence from HCM-related shareholder proposals; (5) evidence from recent labor market developments; and (6) a new line of Delaware fiduciary duty cases focused on board oversight of mission-critical matters. While these six lines of inquiry in isolation offer only fragmented depictions, combining them through the mixed methods approach generates a more nuanced and comprehensive picture that can inform both policy and academic discourse.
The principal implications are twofold. With respect to securities law, the analysis highlights the need for a revised HCM disclosure framework that: (1) elicits more detailed, standardized, and, where appropriate, quantitative information; (2) covers both traditional employees and the so-called shadow workforce comprised of contingent workers; and (3) pays much-needed attention to the complementarities and substitutability between human capital and Al enabled technology. With respect to corporate governance writ large, the analysis underscores the enduring precarity of labor\u27s status within the firm, which will likely be deepened by the AI revolution