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The Conservative Case for ESG
Get PDFThere is a growing consensus across the political spectrum that corporations should not just make money for shareholders but also advance the public good. Conservatives and liberals often disagree about what the public good is, or what the priorities of corporate governance should be, but both sides are discontent with corporations focusing only on profits.
This Article discusses reasons why political conservatives should support efforts to include environmental, social and governance (ESG) factors in corporate governance. Conservatives do not embrace contemporary ESG rhetoric which they associate with liberal social and economic viewpoints, but conservatives nonetheless oppose corporations maximizing profits at the public expense. For example, conservatives oppose corporations sending American jobs overseas, increasing U.S. economic dependence on China, and pulling back from doing business in Israel. Conservatives support faithbased corporations integrating religious values into their business model, for example by remaining closed on Sundays despite lost revenue. Patriotism is important for most conservatives, and probably much more important than profits. This Article argues that the “corporate purpose” provisions in a bill introduced by Senator Elizabeth Warren, the Accountable Capitalism Act, should gain the support of conservatives in Congress with relatively minor amendments that would emphasize conservative corporate governance priorities without undermining the underlying principles in the bill. Encouraging corporate managers to take the public good into account is important to conservatives as well as liberals and preventing the “profit maximization” norm from overtaking corporate law should be a priority for both
Multinational Business Entities and their Role in the Global Environmental, Social, and Governance Architecture
Get PDFAmerican Dream: Social Pressures and Lackluster Regulation Allow Multi-Level Marketing Companies to Function as De Facto Pyramid Schemes
Get PDFThe entrepreneurial spirit goes to the heart of the American Dream. Pull yourself up by the bootstraps. Put your nose to the grindstone. If you could just be given the tools to get started, you, too, can make something of yourself with hard work and perseverance. This mindset drives millions of people each year to participate in Multi-Level Marketing companies (MLMs), which are advertised as an opportunity to start your own business, sell products, and work on your own schedule. MLMs are also designed to reward sellers each time they successfully encourage another person to join, so much so that the reward for recruitment nearly always becomes more lucrative than selling the product. This business structure not only leads many participants to turn little, if any, profit, but also encourages manipulative and aggressive recruitment tactics to be used in order to bring in new recruits and earn a bonus. If it was enough to point out that the statistical probability of financial success in an MLM was small, or that many of its defining characteristics reflect those of illegal pyramid schemes, participation in these companies may not be so high. However, MLMs simultaneously provide and rely on participants’ personal communities in order to maintain the number of people involved. This reliance on community weaves the personal and professional together in such a way that makes it even more difficult to leave the company. These behavioral considerations—combined with case law that has produced broad standards and enforcement mechanisms that are difficult to successfully utilize—have created a predatory industry that is rarely held accountable. This Note argues that the distinction between legal MLMs and illegal pyramid schemes is so ill-defined that illegal and deceptive practices dominate the MLM industry. The use of traditional consumer protection laws and private litigation requires intensive fact discovery and litigation costs that are often prohibitive to pursuit of a claim. This Note concludes that, in order to successfully protect participants and consumers, two solutions should be pursued. The first is a federal statute providing a nuanced definition of an illegal pyramid scheme that can be utilized by public and private legal entities. The second is a change to the Business Opportunity Rule—enforced by the Federal Trade Commission—that would include MLMs and require them to disclose potential earnings to new participants before they join
Trouble’s Bruen: The Lower Courts Respond
Get PDFNew York State Rifle & Pistol Ass\u27n v. Bruen revolutionized the understanding of how Second Amendment cases are to be adjudicated. Rejecting the tiered-scrutiny analysis around which the lower courts had coalesced since the 2008 Heller decision, the Court instructed courts to look to history and tradition after it was determined that state or federal regulations limited activities that fell within the protections afforded by the Second Amendment\u27s text. Justice Thomas\u27s opinion, however, left open significant questions about how the history-and-tradition method is to operate in practice. The Court recently held oral arguments in United States v. Rahimi, in which the justices will have an opportunity to provide answers to some of those questions, should it choose to do so. In many ways, Rahimi is a good vehicle for the Court to fill in the lacunae created by Bruen, which the lower courts have struggled with in the last two years. Using Rahimi as our point of departure, we will summarize the case, highlight what we think are the significant open questions the Court should address, and then look at how the courts of appeals have answered those questions. While our approach here is largely descriptive, we do include some opinions about what the correct answers to those open questions are
Taxing Sugar Babies
Get PDFHow people talk about tax reflects both personal beliefs and larger cultural attitudes. In many cases, whether and how a potential taxpayer understands their activities in tax terms may also reveal attitudes about themselves and the value that society assigns to those activities. This Article examines how sugar daddies and sugar babies talk about taxes in two Internet discussion forums to reveal the ongoing stigma associated with sex work. Through mostly content analysis, the focus is on the attitudes of sugar daddies and sugar babies toward taxation and the filing positions they take, as well as how tax professionals intervene in online discourse at the intersection of tax laws and sugaring.
This Article makes three principal claims—one descriptive, one normative, and one interpretative. First, the dominant discourse among sugar daddies and sugar babies is that a sugar baby receives “gifts,” not income in exchange for companionship that usually (but not always) includes a sexual element. A discernible counternarrative emerges from apparent tax professionals who take the view that a sugar baby’s receipts are income. Second, this Article explains that this latter position is likely true as a technical tax matter. However, it is unlikely that tax authorities will seek to prosecute sugar babies for failing to report income. Sugaring occupies a gray area between private, intimate relationships, on the one hand, and commercial sex work, on the other. Third, the persistence of tax talk that a sugar baby’s receipts are gifts helps maintain this gray area, even though the non-taxation of a sugar baby’s receipts hurts both the government, in the form of lost tax revenue, and sugar babies themselves, who do not receive work credit toward Social Security and other programs that depend on years of market labor. The persistence of the gift rhetoric further devalues the sugar baby’s efforts, ignores the emotional and physical risks associated with sugaring, and perpetuates longstanding stigmas against sex work
The Belfast/Good Friday Agreement and Transformative Change: Promise, Power and Solidarity
Get PDFIn 2023 the 1998 Belfast/Good Friday Agreement marks its twenty-fifth anniversary. For many the Agreement projects a global image of a successfully concluded end to conflict. However, key aspects of the agreement remain under-enforced or simply undelivered: in particular, provisions related to significant and wide-ranging guarantees addressing human rights and equality of opportunity. As a result, socio-economic and cultural deficits persist, undermining the capacity to achieve a ‘positive peace’. In this article we address the question of how transformative the Agreement and associated reforms have been in addressing the root causes of the conflict and the structures that underpinned it. In doing so, we deploy Clara Sandoval\u27s typology of different forms of societal change – ‘ordinary’, ‘structural’ and ‘fundamental’ – to guide our thinking and analysis, and tackle the most fundamental of questions in peace agreement literature and practice: whether, in fact, peace agreements can undo the fundamental causes that trigger and sustain violence. The article outlines the transformative promise of the Agreement, the multiple interlocking factors that have undermined that promise and the role of civil society in sustaining that transformative potential. Our conclusions point to a more nuanced understanding of what constitutes the ‘ordinary’ in transitional settings and a caution against the hyperbole of the transformative. We view transformative change as slothlike in its emergence, specifically grounded in progressive and cumulative re-orderings that can accompany peace processes. Rather than a moment of radical change, transformation follows from the cumulative impact of symbolic gesture, specific legal provision, procedural practice, mechanisms of accountability, and an engaged and vibrant civil society
Raz y Bulygin sobre teoría del derecho y enunciados jurídicos
No full textEl presente texto aborda dos intercambios entre Eugenio Bulygin y Joseph Raz. El primer intercambio apareció en el libro Una discusión sobre la teoría del derecho, en el que Bulygin, al igual que Robert Alexy, comentan el artículo de Raz “¿Puede haber una teoría del derecho?”. El segundo intercambio se produce del ensayo de Bulygin, “Enunciados Jurídicos y Positivismo: Una Respuesta a Joseph Raz” (1981), que fue una respuesta a un artículo de Raz, “The Purity of the Pure Theory”, publicado en 1981. Palabras clave: Teoría del derecho, Enunciados jurídicos, Positivismo, Teoría pura
The present paper addresses two exchanges between Eugenio Bulygin and Joseph Raz. The first exchange appeared in the book Una discusión sobre la teoría del derecho, in which Bulygin, like Robert Alexy, commented on an article by Raz “Can There Be a Theory of Law?”. The second exchange takes place in Bulygin’s essay, “Enunciados Jurídicos y Positivismo: Una Respuesta a Joseph Raz” (1981), which was a response to an article by Raz, “The Purity of the Pure Theory,” published in 1981. Key words: Legal theory, Legal statements, Positivism, Pure Theor
Fatherhood, Family Law, and the Crisis of Boys and Men
Get PDFBoys and men in all racial and ethnic groups and across most socioeconomic groups are struggling on many fronts, including education, employment, physical and mental health, and social integration. In these areas and more, boys and men are much worse off than they were only a few decades ago. The crisis—which is concentrated among men without college degrees—is rooted in large-scale structural changes to the economy that have decimated jobs for this group and policy choices that emphasize incarceration while doing little to address economic inequality.
The decline in male well-being is not just a problem for boys and men. It is a problem for families. Men’s economic prospects have a profound impact on whether couples will commit to each other. Men without steady work—and with behaviors that often accompany unemployment, including a higher frequency of intimate partner violence—have trouble sustaining long-term relationships, and many do not marry. They often have children, but once romantic relationships end, unmarried men tend to drift away from the family. Many fathers want a larger role in their children’s lives, but this is possible only if they can strengthen their relationship with mothers. Many mothers also want fathers to be more involved, but they are concerned about issues fathers bring to the family. And children want a relationship with both parents.
Family law is part of the problem, contributing to the familial isolation of men without college degrees. In recent decades, family law has undergone a significant transformation, but this transformation primarily benefits married couples. The legal system now seeks to create “postdivorce families”—that is, families in which both parents are cooperative, active caregivers, notwithstanding the end of the parents’ romantic relationship. To this end, custody laws encourage shared parenting, and family courts offer alternative dispute resolution processes, counseling, and other assistance that strengthen fathers’ active membership in the family. But men facing economic precarity are unlikely to be married and thus need not go to court when a romantic relationship ends. Accordingly, these men do not benefit from this transformation in custody rules and processes, and they are unlikely to access the supportive services. The child support system makes things worse by imposing unrealistic orders on low-income fathers that alienate men from their families. And the family regulation system, also known as the child welfare system, treats these fathers as incompetent caregivers or, even worse, as threats.
Family law may relegate men in crisis to the periphery of family life, but it can also help bring them back. The goal is not to restore men’s patriarchal authority but rather to extend the model of cooperative parenting to more families. To this end, this Essay proposes far-reaching reforms to custody rules and processes, child support, and family regulation. In each of these problematic areas of family law, the proposed reforms give families greater autonomy in shaping agreements about family relationships, support to make these bargains workable, and opportunities for men to be active fathers
Lawyering in the Age of Artificial Intelligence
Get PDFWe conducted the first randomized controlled trial to study the effect of AI assistance on human legal analysis. We randomly assigned law school students to complete realistic legal tasks either with or without the assistance of GPT-4, tracking how long the students took on each task and blind-grading the results.
We found that access to GPT-4 only slightly and inconsistently improved the quality of participants’ legal analysis but induced large and consistent increases in speed. AI assistance improved the quality of output unevenly—where it was useful at all, the lowest-skilled participants saw the largest improvements. On the other hand, AI assistance saved participants roughly the same amount of time regardless of their baseline speed. In follow-up surveys, participants reported increased satisfaction from using AI to complete legal tasks and correctly guessed the tasks for which GPT-4 was most helpful.
These results have important descriptive and normative implications for the future of lawyering. Descriptively, they suggest that AI assistance can significantly improve productivity and satisfaction, and that it can be selectively employed by lawyers in areas where AI is most useful. Because AI tools have an equalizing effect on performance, they may also promote equality in a famously unequal profession. Normatively, our findings suggest that law schools, lawyers, judges, and clients should thoughtfully embrace AI tools and plan for a future in which they will become widespread