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Toward a Dynamic View of Corporate Purpose
Full text linkScholars debating the corporation’s role in society generally advance the view that there is only one desirable orientation for corporations and their management. Specifically, proponents of a stakeholder governance model contend that focusing management on a broad set of corporate constituents maximizes overall welfare, while advocates of a shareholder-centric directive counter that prioritizing shareholders creates social welfare by rendering the firm most profitable. This Article offers another view: It suggests that the welfare-maximizing purpose for corporations could change depending on external economic conditions, which both of these positions assume away. Specifically, shareholder primacy is likely to promote welfare in a first-best world, where the government regulates corporate externalities, ensures competitive markets, and responds to inequality. Once these assumptions are relaxed, however, the case for stakeholder governance improves. The Article supports this theoretical insight with a detailed analysis of two historical periods in which the dominant view of corporate purpose in society changed dramatically. Specifically, it describes two corporate purpose “moments” of flux in the United States—one that occurred after the great stock market crash of 1929, and another following a period of economic stagflation in the 1970s—in which the pendulum swung from one governance model to the other, impacting scholarship, business practice, and law. These historical snapshots reveal that departures from a shareholder-oriented model have been preceded by extreme external economic conditions, consistent with the theoretical insight offered here. This analysis also sheds light on the present moment, in which inequality, corporate concentration, and environmental degradation have generated heated debates about the corporation’s role in society once again
Phyllis Schlafly and How Forgetting Women\u27s Struggles for Equality Perpetuates Inequality
No full textIn a nation whose Constitution purports to speak for “We the People,” too many of the stories that powerful Americans tell about law and society include only We the Men. A long line of judges, politicians, and other influential voices have ignored women’s struggles for equality or distorted them beyond recognition by wildly exaggerating American progress. Even as sexism continues to warp constitutional law, political decisionmaking, and everyday life, prominent Americans have spent more than a century proclaiming that the United States has already left sex discrimination behind.
This symposium essay draws on my book, We the Men, to explore how forgetting women’s struggles for equality—and forgetting the work America still has to do—perpetuates injustice, promotes complacency, and denies how generations of women have had to come together to fight for reform and against regression. The essay uncovers a crucial tool in the anti-feminist arsenal, wielded by women as well as men. Using internal movement documents along with external primary sources, I show how anti-feminists over the past half century, like anti-suffragists before them, have shrewdly exploited and reinforced America’s penchant for overstating progress.
Proclaiming that the nation has already established women’s equality has made it easier for politicians and activists to oppose feminist reform and promote regression while simultaneously purporting to support women’s rights. The crusade that Phyllis Schlafly and her allies waged in the 1970s and 1980s to block the Equal Rights Amendment took full advantage of this mode of attack, repeatedly deploying assertions about the achievement of women’s equality that were supposedly universal but kept white middle-class heterosexual women foremost in mind. Schlafly’s ideological heirs have followed her playbook in the decades since. Conservative and reactionary legislators and activists routinely insist that America has already triumphed over sex discrimination and wield that contention against feminist mobilization, including feminist efforts to increase government support for childcare, protect abortion rights, defend affirmative action, and push for the ERA.
I argue that remembering women’s struggles more often and more accurately can help the nation advance toward sex equality. These stories highlight the persistence of women’s inequality and make clear that real progress has always required women to disrupt the status quo, demand change, and duel with determined opponents.
America needs more conflict over women’s status rather than less. Conflict has the power to generate forward momentum. Patiently awaiting men’s spontaneous enlightenment does not. Transforming America’s dominant stories about itself can reorient our understanding of how women’s progress takes place, focus our attention on the battles that are still unwon, and fortify our determination to push for a more equal future
Applying the Regulatory Report Card to Tax Regulations
No full textAn invited contribution to an issue of the Journal of Benefit–Cost Analysis honoring the work of the late Dr. Jerry Ellig, this essay recognizes and draws upon the Regulatory Report Card methodology developed by Ellig and Dr. Patrick McLaughlin to evaluate the quality of regulatory impact analysis published by federal government agencies in conjunction with notice-and-comment rulemaking. The essay anticipates a forthcoming study of changes to tax regulatory practices as a result of a 2018 Memorandum of Agreement between the Treasury Department and the Office of Information and Regulatory Affairs – a study the authors discussed and hoped to conduct with Ellig before he passed away. The essay summarizes the Regulatory Report Card methodology, offers a brief typology of tax regulations, addresses why regulatory impact analysis and the Regulatory Report Card methodology are appropriate for the tax context, but also documents a few tax-specific adjustments to the Regulatory Report Card methodology
The Magna Carta, Jarkesy, and the Constitutional Jury Requirement in Crime-Based Deportation
No full textCollegiate NIL Collectives: Context, Structure, and Future
No full textSince its inception, the NCAA has championed the principle of amateurism in college sports-the idea that collegiate athletes may not receive monetary compensation for their athletic performance. In its 2021 decision in National Collegiate Athletic Association v. Alston, however, the Supreme Court found the NCAA had violated antitrust law with its restrictions on certain benefits provided to athletes. With the possibility of much greater liability to follow, the NCAA soon thereafter enacted a radical departure from past practice, enabling athletes to profit from their names, images, and likenesses ( NIL ) while maintaining their amateur status. There were important limitations on this funding: the money could not come from schools, and it could not be tied to athletic performance. Almost immediately, school-specific groups known as NIL collectives stepped in to fill the vacuum by funneling money to athletes for their NIL rights. These collectives-independent entities apart from their schools-received their funding through boosters and supporters as well as commercial entities looking for marketing opportunities.
Created to meet tremendous pent-up demand for the payment of college athletes, NIL collectives opened the floodgates to athletic compensation, and with that came a flood of questions about collectives\u27 operations, connections to their schools\u27 athletic administration, and the extent of their control over the fortunes of their athletes. Due to limited oversight and transparency, the answers to those questions have proven elusive. In this Article, we explore the roots of collegiate athletic compensation through NIL collectives and focus on the nature of these organizations—their internal governance, tax structures, compensation structures, exclusivity requirements, and transparency. We contrast the conflicting principles within the current compensation scheme and propose a set of principles to guide the hand of NCAA rule-makers: avoiding hypocrisy on pay-for-play, protecting athletes from fraud and opportunism, and managing collectives for the common good
AI Companions and the Lessons of Family Law
No full textVirtual friends and lovers powered by artificial intelligence are rapidly moving to the center of our emotional and social lives. Millions of people turn to AI companions every day for conversation, romance, sexual intimacy, therapy, and education. AI companionship holds promise, potentially reducing loneliness, supporting people without access to mental health treatment, helping students learn, and offering a judgment-free space for sensitive conversations. But AI companionship also raises significant concerns. The technology’s addictiveness may exacerbate loneliness and can undermine human relationships. Therapy bots may prove more harmful than helpful. AI companions can be emotionally abusive. And their access to the most intimate aspects of users’ lives poses distinct privacy challenges.
As lawmakers and policy experts reckon with the benefits and serious risks of AI companionship, they must account for the distinctive aspects of AI companionship. Unlike interacting with other forms of AI—being driven in an autonomous vehicle, say, or getting help with coding—people are in a relationship with their AI companion. Any regulatory approach must address this relationality, especially the human drive to attach to others and the vulnerability that comes with that attachment.
Legal scholars have long argued that the regulation of technology must account for relationality. This Article demonstrates that family law—the law of relationships—is a ready means to do so. As a foundational matter, any effort to regulate AI companionship must explain why the legal system should act. Family law helps answer this question by debunking the widespread belief that relationships are purely a private matter. Family law establishes the strong state interest in nurturing positive relationships and addressing harm in abusive and neglectful relationships. These state interests apply not only to human relationships but also to human-AI relationships.
Family law also helps answer the question of how to regulate AI companionship. Family law recognizes, for example, that legal intervention is often necessary to shift the power imbalance that facilitates harmful relationships—a lesson that should be applied to the power imbalance between technology companies and people using AI companions. And family law teaches that expertise and licensing are necessary for mental health experts to work with a person at any age, although AI companions marketed for therapeutic purposes have not been subject to similar gatekeeping. Finally, family law holds lessons for advocacy, showing that it is possible to advance reasonable regulation notwithstanding the polarized political climate and considerable antipathy to regulating the technology industry, at least at the federal level. Family law points, for example, towards state-level interventions rather than action by Congress or federal agencies, and it demonstrates the broader acceptance of regulations targeted at minors than at adults.
In short, AI companionship is a new kind of relationship, bringing profound and unrecognized change to the landscape of our intimate lives. Legal scholars and policymakers must start grappling with this new world now. Family law holds great promise to accelerate that reckoning
Insurers as Contract Influencers
No full textContract boilerplate degrading consumers’ litigation options is omnipresent, but a little mysterious. And that’s not just because no one reads it. We know that terms mandating arbitration, exculpating liability, requiring individualized litigation, and shifting risk have proliferated in the last generation. But consumer contracts’ production and efficacy has been understudied. We bring to bear a new source of information about these questions from the insurance-as-governance literature, asking how insurers influence boilerplate’s adoption and content. Interviewing participants in the liability insurance industry, we show that insurers refine boilerplate language, teach policyholders about its efficacy, and decline coverage when it is absent. At the same time, they rarely offer price breaks for adopting boilerplate, suggesting that at least some of the cost savings from consumer boilerplate may end up in the coffers of insurance firms rather than those of their clients. Insurers are surprisingly skeptical about the value of terms that have particularly ex cited proceduralists and consumer contract scholars—arbitration and liability waiver clauses—and believe their spread does not materially affect the risks that they insure. Overall, these qualitative findings suggest the value of a new, systematic approach to the study and regulation of boilerplate
The Rule of Law in Armed Conflict
Full text linkA fundamental problem in the relationship between war and law has emerged, with two diverging approaches to conceptualizing how law applies to the conduct of hostilities: the operational application for the implementation of legal obligations during combat operations, on the one hand, and the adjudicative application for prosecution and reparation, on the other. Diverging approaches stem from institutional and practical constraints on adjudication, testing the fundamental premise upon which international law operates as a political project to manage international order under the rule of law. This article addresses the doctrinal manifestation of this trend and articulates the parameters in which battlefield conduct can be adjudicated without infringing upon the underlying logic of the law by adhering to its consistent, equal, and objective application
Law for the Rich
Full text linkWith top incomes and wealth reaching historic highs, scholars and politicians have proposed new taxes and novel legal rules aimed at reversing the emergence of the new Gilded Age. Yet while new taxes target the rich directly by imposing greater burdens only on those with incomes or wealth above multi-million-dollar thresholds, none of the proposed legal reforms do anything of the sort. There appears to be no interest in changing property law, corporate law, antitrust law, or labor law, among others, to have special, more burdensome rules applicable only to the rich. This Article asks: Why not? Why shy away from a separate law for the rich if one supports both progressive taxation and distribution- ally informed legal rules in general?
This puzzle, it turns out, is surprisingly difficult to solve. Neither political philosophy nor economic analysis nor practical design considerations offer a plausible answer. Looking for clues outside of legal theory suggests that a separate law for the rich would be widely viewed as unfair because it imposes burdens that are obvious, highly concentrated, and possibly contrary to one of the fundamental elements of law itself. Redistribution through legal rules, it turns out, is limited in a way that redistribution through the tax law is not. Law for the rich is not a solution to the emergence of the new Gilded Age. Reformers must look for other ways of achieving a more prosperous and more just society