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Free Speech Versus Antidiscrimination
No full textConflicts between free speech and antidiscrimination law make up a substantial subset of Eugene Volokh’s wide-ranging scholarship. That work includes: criticism of those courts that have interpreted expression that would otherwise be protected under the First Amendment as triggering liability for the creation of a hostile workplace environment under Title VII; views about the proper scope of constitutionally required exceptions to public accommodations laws for expressive businesses; disagreement with the common assumption that boycotts themselves, as distinct from any accompanying expression, are constitutionally protected free speech; and a bold position on recent clashes between free speech and Title VI on college and university campuses. Canvassing this portion of Volokh’s oeuvre, one sees libertarian instincts but also a genuine appreciation for competing egalitarian concerns. Even when one finds Volokh’s bottom line ultimately unpersuasive, one cannot gainsay his clarity of thought, originality, or fearlessness
Shareholders All the Way Down: EU Corporate Sustainability Reforms and the Structure of Corporate Governance
Get PDFThe laws and norms of corporate law are changing across the globe. Gone are the days when scholars could confidently predict that shareholder wealth maximization would be the universal metric of corporate success. Instead, corporate leaders, governments, workers, activists, and even shareholders are looking beyond simplistic models of shareholder primacy to a broader understanding of corporate responsibility. This new approach has taken its firmest hold in the European Union, where three directives over the last decade have reshaped reporting requirements and directors’ duties in significant ways, pushing for greater accountability and attention to the needs of stakeholders.
Changes to company disclosure regimes and directors’ duties signal an important shift in the norms of global capital, and they move the dialogue beyond narrow attention to financial performance. This essay, however, provides a note of caution about the ceiling inherent in these directives and similar proposals. Without systems of codetermination or shared stakeholder governance, expectations of a more sustainable approach to governance will be built on somewhat sandy soil. Changing how the corporation governs itself requires changes to governance. Until more structural adjustments, such as an expansion of voting rights or changes to board representation, are undertaken, we cannot expect too much while purely financial interests are still in control.
Part II of this essay examines the efforts to incorporate sustainability imperatives into European corporate law in the last decade. Part III argues that despite these positive developments, structural changes in governance are necessary to reorient corporate governance towards sustainability on a longerterm basis. Part IV concludes
SCOTUS House: Can A Supreme Court Ethics Lawyer and Inspector General Help Get This Fraternity Under Control?
Get PDFToday, the United States Supreme Court is immersed in an ethics crisis of unprecedented proportions. Public confidence in the Court is at an all-time low and Congress is considering action. The Court is less likely to police itself than it was over fifty years ago when Justice Abraham Fortas resigned over a scandal that was probably less serious than that facing at least one justice today. This article discusses the Court’s recent scandals and explains multiple factors that make the Court prone to ethics lapses, perhaps more so than the other two branches of government. This Article then proposes that a partial solution to the Supreme Court ethics crisis would be to have a dedicated ethics lawyer and an inspector general for the Supreme Court. There are specific ways in which an ethics lawyer and an inspector general should help reverse the factors identified in this Article as obstructing a workable ethics regime at the Court. Congress has the power and responsibility to enact these and other reforms necessary to assure that the Court’s justices in their personal conduct uphold their duty to be faithful to the law while holding an office that gives them the power to interpret and enforce the law
Bureaucratic Autonomy and the Policymaking Capacity of United States Agencies, 1998-2021
No full textDespite a renewed interest in the health of the US administrative state, the absence of meaningful time-series measures of bureaucratic capacity hinders the testing of core theories of bureaucratic and executive politics. Using over 190 million personnel records, I estimate 5590 yearly policymaking-capacity scores for 261 unique agencies from 1998 to 2021. These measures provide an invaluable tool as either an independent or dependent variable in studies of administrative policymaking. To illustrate the value of these measures, I test longstanding theories about the relationship between bureaucratic autonomy and capacity. In contrast with emerging survey research, this study demonstrates that agencies with higher levels of structural independence have higher levels of policymaking capacity
Returning Individual Research Results from Digital Phenotyping in Psychiatry
No full textPsychiatry is rapidly adopting digital phenotyping and artificial intelligence/machine learning tools to study mental illness based on tracking participants’ locations, online activity, phone and text message usage, heart rate, sleep, physical activity, and more. Existing ethical frame-works for return of individual research results (IRRs) are inadequate to guide researchers for when, if, and how to return this unprecedented number of potentially sensitive results about each participant’s real-world behavior. To address this gap, we convened an interdisciplinary expert working group, supported by a National Institute of Mental Health grant. Building on established guidelines and the emerging norm of returning results in participant-centered research, we present a novel framework specific to the ethical, legal, and social implications of returning IRRs in digital phenotyping research. Our framework offers researchers, clinicians, and Institutional Review Boards (IRBs) urgently needed guidance, and the principles developed here in the context of psychiatry will be readily adaptable to other therapeutic areas
Populist Politics and International Business Policy: Problems, Practices, and Prescriptions for MNEs
Get PDFIn this editorial introduction to the Special Issue on populism, we discuss different approaches to defining populism in ways relevant to multinational enterprise (MNE) strategy and organization. In addition, we demonstrate how populist host-country government policies often target MNEs in ways that give rise to distinctly new forms of discriminatory treatment. This theoretical background sets the stage for the papers of this Special Issue, explaining the origins of these populist host-country government policies and the impact of such policies on FDI and international trade. We conclude with various suggestions for advancing IB policy research on populism, including building a better model of where populism comes from, how various conceptions of populism operate, and how they affect MNEs
The Original Presidency: A Conception of Administrative Control
Get PDFThe two predominant conceptions of executive power and supervision over the administrative state are inadequate. One maintains that all administrative discretion is the President’s, and that by virtue of the grant of executive power the President can both remove and control the discretion of all subordinate offcers. That poses a possible textual problem: it seems to make the Opinions Clause superfuous. The other conception maintains that the President is, at best, a “persuader-in-chief,” with no constitutional right to control administrative discretion or to remove offcers tasked with implementing statutory duties. Although this view makes sense of the Opinions Clause, there is no historical evidence for it. The proponents of these two schools of thought have thus been locked in a decades-long stalemate, with competing and irreconcilable paradigms of total control or no control. This Article recovers another, lost way of thinking about presidential power. According to this conception, Congress can insulate inferior offcers from removal because they must follow orders. As for principal offcers, the President can remove but not control them, at least not directly. There is no constitutional obligation on the part of principal offcers to obey; the only inducement is the threat of removal. The Opinions Clause, far from being superfuous, then assures the President the power to acquire information to exercise intelligently the power to remove. In addition to this account’s textual and structural virtues, it appears to have been a relatively widely shared understanding of presidential power at the Founding, enough so to be within the range of plausible original meanings. This understanding of executive power may seem overly formalistic, but it is functionally more desirable than the two competing accounts that allow for total control or total balkanization
State-by-State Morality Superseding Federal Immigration Law: An Analysis of the “Crimes Involving Moral Turpitude” Distinction Through the Lens of Post-Dobbs Anti-Abortion Law
Get PDFMutually Assured Discussion: Lessons from Space Law for a Waning Nuclear Arms Regime
Get PDFThis paper investigates the usefulness of applying the lessons of the Artemis Accords (“Accords”) to the nuclear arms regime – specifically asking whether strategic soft law agreements could create a stop gap for the shortcomings of long held nuclear arms agreements. To do so, it explores multiple instruments of international law, their uses in the existing nuclear and space frameworks, and how that may inform future actions for security or arms agreements. In conclusion, it is determined that the approach developed by the Accords may benefit future nuclear arms communications. The Accords bring many states to the table, largely underscoring mutually accepted existing international law while subtly and incrementally expanding it. The responding criticism of the Accords is just as healthy to the process as praise, because it keeps the dialogue in motion – and this is the success of soft law. While lacking in legal might, the ease of its creation is its superpower. Creating consistent and constant communication helps build predictability and trust, which is a recipe for a more secure world