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By Way of Conclusion: Making Sense of Fallacies
No full textAs noted in the Introduction to this volume, our collective goal is to examine some of the key misconceptions and unquestioned assumptions – which we refer to as ‘fallacies’ – that guide, and often misguide, developments in modern corporate law and financial regulation. These fallacies are embedded and instantiated in scholarship, law, public policy and public opinion. Their intellectual and practical impact is considerable, but it is largely hidden. Critically, these fallacies too often frame legal and policy debates, strongly influencing and even determining policy choices. While our volume does not (and indeed cannot) provide an exhaustive analysis of this complex phenomenon, it takes a critical step toward understanding what it is and why it demands greater attention on the part of academics and policymakers. Despite the great diversity of topics covered in individual chapters, certain big-picture themes emerge, notably as to societal beliefs, attitudes, values, and broader understandings and worldviews. In this conclusion, we contemplate these themes and where their continuing exploration might lead us
Small Farms and Climate Change: Accomplishing SDGs 2 and 13 by Supporting Food Sovereignty
No full textUnited Nations member states have fallen woefully short on progress in accomplishing the Sustainable Development Goals (SDGs), and more urgent action is needed to combat the effects of climate change. International promotion of food sovereignty—an ideology that encourages localized, environmentally friendly food production— would help with the accomplishment of the SDGs, particularly goals 2 (ending world hunger and achieving food security) and 13 (combating climate change). This paper surveys the history of food sovereignty and explores the ways in which the concept supports SDGs 2 and 13, examining its production and environmental benefits as they relate to these specific goals. It also examines the current international status of food sovereignty, including documents where it is present and potential inhibitors to its further incorporation into the international framework. The final section suggests means of further promoting food sovereignty on an international scale, including its potential to become customary international law, ways to incorporate its principles into treaties, and the potential for an International Court of Justice advisory opinion to be issued about the topic
Harmonizing Delegation and Deference After Loper Bright
No full textBy overturning Chevron, the Supreme Court\u27s Loper Bright decision clearly changed the way in which courts must approach agency actions interpreting statutes. But Loper Bright stopped well short of declaring that courts should always ignore agency interpretations and only interpret statutes using their independent judgment. In two critical paragraphs, the Court acknowledged that some statutory provisions delegate discretionary authority to agencies counseled a more restrained judicial review for reasoned decisionmaking when agencies exercise such power. But, whereas Chevron focused nearly exclusively on the statutory word or phrase that an agency was endeavoring to interpret and implement, Loper Bright shifts the analysis at least initially to the delegations themselves-i.e., the statutory terms that give agencies the authority to act in the first place. Drawing on prior work, we propose a framework that categorizes statutory delegations of rulemaking power as specific authority, general authority/housekeeping, and hybrid delegations. We then argue that Loper Bright is best understood and interpreted as demanding independent judgment, potentially influenced by Skidmore\u27s contextual factors, for general authority/housekeeping regulations and a more restrained reasoned decisionmaking review for specific authority and hybrid regulations. We explain how this approach harmonizes Loper Bright\u27s vision for judicial review of agency action with the Supreme Court\u27s recent nondelegation and major questions jurisprudence. We also suggest that reading Loper Bright this way will cabin agency discretion in a manner that curtails agency overreach while still allowing executive discretion in implementing and administering statutory requirements
The Normative Porosity of the UN Convention on the Law of the Sea: From Human Rights at Sea to the Ocean-Climate Nexus
Full text linkThis article delves into the nexus between the 1982 U.N. Convention on the Law of the Sea (“UNCLOS”) and the broader international legal order, focusing on UNCLOS Article 287 tribunals with jurisdiction limited to disputes related to the Convention. The study categorizes three gateways through which external rules of international law influence the interpretation and application of UNCLOS: Renvoi provisions, systemic interpretation mechanisms, and systemic integration via Article 293(1). Considering recent studies highlighting UNCLOS as a “springboard for interaction,” this research synthesizes legal dogmatics with insights from the sociology of law and international relations theory. Mindful of the momentum experienced by the “human rights at sea” and the “ocean-climate nexus” movements, it offers a comprehensive understanding of UNCLOS’s integrative limits, crucial for maintaining its delicate balance amid evolving legal complexities, especially in the context of its compulsory dispute settlement system
From ABC to OT: A Historical Critique of the FLSA’s Unfair Overtime Exemption for Preschool Teachers
Full text linkScientific and Technical Expertise After Loper Bright
Full text linkCourts once trusted federal agencies for their expertise in administering complex statutory schemes, particularly regarding science and technology. Unlike judges, agency officials can narrowly focus on a specific area of law and have access to experts to inform their decision making. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, the Supreme Court created a presumption that, absent language to the contrary, Congress intends for agencies to interpret statutory ambiguities. Chevron allowed agencies to utilize their varied forms of expertise while ensuring oversight from generalist judges. This court–agency partnership abruptly ended, however, in Loper Bright Enterprises v. Raimondo. The Court distinguished between legal and scientific expertise, noting that the former receives no deference while the latter has merely the power to persuade. Although the Court ultimately ruled on statutory grounds, it invoked Article III to support the argument that judges have an affirmative obligation to independently interpret statutes. But by shifting primary interpretive authority from agencies to reviewing courts, the Court has forced generalist judges to grapple with complex scientific and technical concepts that they are ill-equipped to understand. Loper Bright could result in a heavier workload for judges—or worse, could cause them to fall back on partisan preferences. Congress is not wholly without power, however. Beyond expressly delegating interpretive authority to agencies where constitutionally permissible, Congress could give appellate courts access to neutral experts with relevant backgrounds. By enabling appellate courts to hire and use neutral experts in administrative law cases, Congress would reduce judges’ workload, improve the quality of judicial decision making, and ensure that judges independently interpret statutes
Corporate Governance for Platform Workers
Full text linkRegardless of their status under employment law, we believe that corporate law holds untapped potential in reshaping the rights and working conditions of platform workers. While the law of corporate governance remains aligned with shareholder interests, the collapse of the law-and-economics underpinnings of shareholder primacy should prompt us to develop new approaches to corporate governance. In this Essay, we briefly set out three alternative models for determining whether stakeholders should participate in corporate governance: a democratic participation model, a theory of the firm model, and an information theory model. All are fully consistent with the precepts of standard economics that dominate corporate law theory, and they counsel in favor of extending governance rights to platform workers regardless of how they’re classified under labor and employment law. This reimagined corporate governance could provide avenues for platform workers to influence the firm policies that directly affect them as well as give them a degree of control over their working lives
