Monthly Archives: August 2018

Abortion and the Struggle for Meaning

Political polarization is so endemic in the United States today that we are all becoming experts in it. The compilation of moral, strategic, and tactical weaponry on either side of a deeply polarized issue is an art form in its own right. Once more or less limited to the “culture wars” issues of family and sexuality—the bread and butter of this Jotwell page—the right/left polarization of U.S. political culture has exploded into every issue touched by a hyper-active president who thrives on conflict. Maintaining a taste for critical engagement, while staying morally alive and strategically and tactically mobile, has gotten a lot harder since November 8, 2016.

Now comes Carol Sanger with a book about the premier culture wars issue—abortion—in which she strives to engage the polemics that beset the topic without being spoken by them. Sanger’s own “position on the issue” is clearly pro-choice, and she is sometimes willing to call out the other side when she thinks they are being cruel or acting in bad faith. But About Abortion: Terminating Pregnancy in Twenty-First Century America repeatedly pushes beyond its own polemical moments to engage dimensions of pregnancy and abortion so complex and surprising that they defy classification in the settled pro and con camps. “Pro-choice people are not murderers and pro-life people are not idiots.” (P. xiv.) Continue reading "Abortion and the Struggle for Meaning"

The Temporal Dimension of Fiduciary Duty

Susan N. Gary, Best Interests in the Long Term: Fiduciary Duties and ESG Integration, 90 U. of Colo. L. Rev. __ (forthcoming 2018), available at SSRN.

What is the time frame of fiduciary duties? In other words, what time horizon should fiduciaries have in mind as they execute their responsibilities? This is an underexamined aspect of fiduciary law, and Professor Susan Gary’s piece, Best Interests in the Long-Term: Fiduciary Duties and ESG Integration, provides a thought-provoking entry point using the lens of socially responsible investing (SRI). Gary argues that if prudent investing evolves to encompass a longer-term understanding of value creation, then consideration of environmental, social, and governance (ESG) factors may become not only possible, but legally required. If this occurs, we may witness a tectonic shift in investor behavior similar to that produced by enshrining modern portfolio theory (MPT) in fiduciary law.

Gary starts by reviewing the different terminologies and strategies of SRI. The goal is to differentiate ESG integration—Gary’s primary object of analysis—from other types of SRI. ESG integration is a holistic investment strategy that considers traditional financial factors alongside material ESG factors, with materiality defined as the likelihood that the ESG factor has some relationship with financial outcomes. Environmental factors might include a company’s energy efficiency policies, while social factors can run the gamut from human rights to labor conditions to community relations. Governance factors, in turn, involve such issues as board diversity, executive compensation, and transparency policies. Gary contrasts ESG integration with early forms of SRI that employed negative screening mechanisms to exclude certain socially undesirable companies or classes of assets from an investment portfolio. She also distinguishes it from a more modern form of SRI called impact investing, which typically involves a sacrifice of economic return in exchange for a measurable social impact. Continue reading "The Temporal Dimension of Fiduciary Duty"

How Dreamland Colored My Summer Vacation and Thinking about the Opioid Epidemic

Sam Quinones, Dreamland: The True Tale of America’s Opiate Epidemic (2018).

For my Jot this month, I chose a book that is somewhat outside of the typical academic genre, but, for reasons that I will explain, nonetheless worthy of attention by health law scholars. My summer travels this year were cast against the background of reading Sam Quinones’s Dreamland: The True Tale of America’s Opiate Epidemic, which I started mostly out of curiosity and desiring a page-turner, non-fiction story. Quinones is a former newspaper reporter, for various outlets, including the Los Angeles Times, who spent his career covering the crack epidemic, gangs, drug trafficking, immigration, neighborhood news, and local government. For nearly a decade he immersed himself in Mexican culture and politics, learning Spanish and delving into topics ranging from the street gangs, the PRI, Tijuana opera, drag queens, and taco and popsicle vendors. He is the author of myriad news articles and two other nonfiction books of stories. His ground-level experiences and insights come through in Dreamland, which weaves together three primary narratives: (1) heroin dealers from an obscure Mexican state of Nayarit; (2) pharmaceutical marketing practices and the evolution of pain treatment; and (3) economic decline and loss of opportunity in small-town and rural America. The chapters shift among those three narratives, interspersed with poignant anecdotes from individuals and families personally affected by addiction, overdose, and loss.

Working somewhat backwards chronologically, Quinones starts from his comfort zone, the tale of “black-tar” heroin dealers from Nayarit, Mexico, and their novel drug distribution strategy, which he likens to Domino’s pizza franchising. Dealers avoided large cities that were the hotbeds of crack and other earlier illegal drug markets, locating instead in mid-sized cities with enough immigrant populations that the Nayarit dealers could blend in, and with a methadone clinic or two from which the entrepreneurial dealers could establish a customer base. Dealers maintained relatively small inventories and distributed their product via drivers carrying even smaller quantities, packaged in balloons that could be swallowed in the event they were pulled over. Even if caught, the quantities typically were not of much interest to law enforcement and resulted in short jail stays and/or deportation. Drivers who returned to Mexico by choice or by law were quickly replaced by other young, eager recruits, or themselves returned after reveling in the financial spoils (including dark-blue Levi jeans) of their time up North. The distribution method allowed addicts to call their dealer and receive delivery of the product in the comfort of their own cars or homes. Dealers prioritized customer service and loyalty, offering free product (including “welcome home” packages after customers’ rehab or incarceration stays), undercutting the competition, and responding to calls quickly, efficiently, and on-demand. Continue reading "How Dreamland Colored My Summer Vacation and Thinking about the Opioid Epidemic"

The Value of Identity

Sarah Dadush, Identity Harm, 89 U. Col. L. Rev. __ (forthcoming, 2018), available at SSRN.

You’re the kind of person who cares about protecting the environment, improving working conditions for the poor, and achieving sustainable growth. Indeed, your identity as a socially-conscious consumer is so important to you that you are often willing to pay more for a product if it is sold by a company who claims to share your values, to reflect the kind of person you want to be in this world. Attracted by this premium, more and more companies are making sustainability promises to target such consumers through commercials, print and electronic advertisements, and product labeling (often employing third-party certifications) to signal to the consumer that its products align with the consumer’s values and identity as a socially- and environmentally-conscious global citizen.

So what should happen when you find out that you were duped—that the “clean diesel” car you bought because it was advertised as being “low on emissions” actually pumped into the environment 10-40 times the nitrogen oxide pollution allowed by law (as in Volkswagen’s “Dieselgate” scandal), or where the clothes you purchased at a premium because they came affixed with a “Good Working Conditions” label were actually made in sweat shops, or where the expensive “Fair-trade” chocolate you bought for your daughter was made with the labor of beaten and enslaved children? What harm have you suffered, and what remedies, if any, should be available for your unintentional support of a system of production that polluted the environment, exploited workers, and enslaved children—practices that go against your very identity as a person? Continue reading "The Value of Identity"

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