Monthly Archives: July 2021

Corporate Social Measures

  • Paul Brest & Colleen Honigsberg, Measuring Corporate Virtue—And Vice, in Frontiers in Social Innovation (Neil Malhotra ed., forthcoming 2021), available at SSRN.
  • Veronica Root Martinez & Gina-Gail S. Fletcher, Equality Metrics, 130 Yale L.J. Forum 869 (2021).

Many of today’s investors are not just seeking positive financial returns. They are also seeking positive social impact. Not surprisingly, businesses and entrepreneurs have responded in kind with numerous investment offerings, corporate initiatives, and business ventures to promote social benefit. This shift in capital markets and corporate governance is perhaps most reflected in the incredible growth of environmental, social, and governance (ESG) investments and the increasing activism of America’s largest companies on some of the most pressing social issues of our time.

This shift away from pure profit-seeking towards profit-seeking plus social impact has been the subject of much debate. Less debatable is the sustained and significant nature of this sea change. One critical question that arises in the discussions surrounding this development is how best to compare and measure the efficacy of corporate actions for the betterment of society.

Two engaging, recent articles offer sensible approaches to addressing this critical question. The first article, Measuring Corporate Virtue—and Vice by Professors Paul Brest and Colleen Honigsberg presents a comprehensive general construct for benchmarking ESG performance. The second article, Equality Metrics by Professors Veronica Root Martinez and Gina-Gail S. Fletcher provides a more targeted proposal to address the specific problem of racial inequity in businesses. Each of these articles is distinct in their subject and scope of focus, but both fundamentally share the belief that business can play an important and more effective role in addressing certain social challenges. Continue reading "Corporate Social Measures"

A Rule Against Fun

Nina Varsava, Professional Irresponsibility and Judicial Opinions,  __ Hous. L. Rev. __ (forthcoming, 2021), available at SSRN.

In recent months, federal judicial opinions have criticized “schlocky Star Wars sequels” or called circuit case law “a hot mess.”  They have fondly recalled “[w]hen painter-turned-inventor Samuel Morse sent the first telegraph message” or sarcastically used expressions like “presto!” or “voila.” And they have sustained decades-long criminal sentences by writing: “tl;dr . . . . we affirm the whole kit and caboodle.” In different ways, these opinions are having a bit of fun. And what could be wrong with that?

Quite a lot, argues Nina Varsava in a bracing and timely paper on judicial rhetoric. The piece takes aim at opinions that are literary, witty, or entertaining—precisely the traits that, she argues, are often held in high regard. Part of Varsava’s argument overlaps with familiar debates about legal narrative and storytelling, but she goes in unexpected directions. Continue reading "A Rule Against Fun"

Black Lines of Credit Matter

Mehrsa Baradaran, Jim Crow Credit, 9 UC Irvine L. Rev. 887 (2019).

Mehrsa Baradaran makes an outstanding contribution to the literature on de jure, systemic racial bias and lays a foundation for reparations in the context of consumer credit in Jim Crow Credit. Drawing from and building on her two Harvard U. Press books, How the Other Half Banks (2018) and The Color of Money (2017), Baradaran documents the systematic subsidization of white borrowers–and thus the creation of the white, suburban middle class–in the New Deal and subsequent 20th century government programs that brought us today’s home mortgages, credit cards, and predatory lending practices such as payday lending. Bottom line up front: in credit as elsewhere the haves come out ahead. The surprise is how the federal government subsidized this enormous giveaway to create a white, suburban middle class at the expense of urban and African-American communities.

In bumper sticker form, Baradaran’s message is that Black lines of credit matter. Just as driving or jogging while Black too often proves fatal, borrowing while Black harms Black lives by imposing financial and other injuries that white borrowers are much less likely to suffer. Perhaps most galling–and akin to criminal defendants funding mass incarceration through fees and fines–is that African Americans taxpayers helped fund the U.S subsidies to white borrowers via mortgages and later, credit cards. The compound interest resulting from those subsidies explains a good amount of today’s income inequality: whites enjoy 10 times the wealth of African-Americans, and measured in quasi-liquid assets like retirement accounts, that inequity jumps to a jaw-dropping 100 times more wealth.1 Continue reading "Black Lines of Credit Matter"

The Excluded Muddle

David E. Pozen & Adam M. Samaha, Anti-Modalities, 119 Mich. L. Rev. 729 (2021).

A specter is haunting modern American legal scholarship—the specter of branding.

Whether it is a marketplace of ideas or just a marketplace, legal scholarship today overflows with neologisms, “I call this”-es, and other efforts to hawk our wares to law review editors and, perhaps, other scholars.1 Useful at times, branding is often unnecessary or silly. It routinely announces a purportedly un-noticed phenomenon that in reality fills whole library shelves. (One awaits with resignation the inevitable article proclaiming, “I call this activity, in which two parties reach a binding and often memorialized exchange of promises, agreementification. It urgently deserves closer study.”) Given the frequency with which legal scholars treat as “new” arguments or observations that were old before they were born but lie outside Westlaw’s reach, branding often involves neither new wine nor new bottles, but old wine in old bottles with a new label slapped on. It is bad enough if these efforts are cynical, worse if they are not, and perhaps worse still when they are a bit of both. We might call this the Late Capitalism-ization of legal scholarship.

With that cheerful preface, it is a pleasure to see a new label2 that actually performs a useful service, spotlighting something we might otherwise neglect. It is doubly pleasing because the article neither celebrates nor condemns what it labels. It walks us through the phenomenon with a proper sense of its nuances and its costs and benefits. Written by David Pozen and Adam Samaha, Anti-Modalities exemplifies the difference between a meaningful scholarly label and a mere marketing gambit. Continue reading "The Excluded Muddle"

Our Joy: An Inclusive Right of Enjoyment in Property and Contract Law

Nancy Leong, Enjoyed by White Citizens, 108 Geo. L. J. __ (forthcoming, 2021), available at SSRN. 

I recall being confused by how the average 1L Property course treated the “important” property provisions. I was struck that we spent all of our time on the 5th Amendment clause that required compensation by the government for the “taking” of private property by the government. But we did not cover the 13th Amendment, which eliminated slavery, thus impacting the property rights of (predominately) white citizens.

Why were we not talking about the 13th Amendment and the supporting legislation, §1981 and §1982 of the Civil Rights Act of 1866, which granted property rights to freed blacks? What did it mean in these statutes that all persons should have the “same right” of property as that “enjoyed by white citizens”?

Nancy Leong’s Enjoyed by White Citizens seeks to solve that mystery. In the process, she helps us better understand the meaning of property rights as a general matter and illuminates the role of property rights rhetoric in struggles for civil rights and against privileged caste status. Continue reading "Our Joy: An Inclusive Right of Enjoyment in Property and Contract Law"

A Definitive Work on Temporary Political Leadership

Anne Joseph O’Connell, Actings, 120 Colum. L. Rev. 613 (2020).

President Trump relied heavily on temporary leadership to run his branch. According to critics, the tenuousness of Trump’s cabinet positions—and their high turnover rate—was both a cause and reflection of an amateur and unreliable presidency. And yet, while the extent to which Trump depended on acting officials was anomalous, he was not the only president to do so; indeed, presidents have utilized temporary officials for quite some time. In addition to demonstrating that temporary officials have been fairly common across both Republican and Democratic administrations since the turn of the century, Anne Joseph O’Connell argues in Actings that these officials stabilize the government in times of crisis and transition.

Professor O’Connell, along with Nina Mendelson, is one of today’s preeminent legal experts on the Federal Vacancies Reform Act (Vacancies Act). Professor O’Connell’s prior scholarship and testimony on this topic is both detailed and accessible, and makes clear the stakes of the relevant debates. Actings, published recently in the Columbia Law Review, is no exception. This comprehensive work offers a nuanced and evocative account of the history, constitutional and legal frameworks, and problems that attach to temporary leadership in the top positions of the executive branch. It also marks a departure from Professor O’Connell’s previous writing, in that it is relatively accepting of temporary political appointees. Continue reading "A Definitive Work on Temporary Political Leadership"

Reconsidering the “Full-Time Face-Time Norm” After COVID-19

Michelle Travis, A Post-Pandemic Antidiscrimination Approach to Workplace Flexibility, 64 Wash. U. J. L. & Pub. Pol’y 203 (2021).

There are plenty of legal rules that were originally born from faulty reasoning and that somehow ended up becoming firmly entrenched despite their flaws. One hopes that among the many changes it has brought, COVID-19 will cause courts and other legal authorities to revisit well-established legal rules, the shortcomings of which have been exposed during the pandemic. Professor Michelle Travis discusses one of these areas in her forthcoming article A Post-Pandemic Antidiscrimination Approach to Workplace Flexibility.

Travis takes aim at what she calls the “full-time face-time norm,” a term she coined fifteen years ago. The phrase describes “the judicial presumption that work is defined by long hours, rigid schedules, and uninterrupted, in-person performance at a centralized workspace.” (P. 203.) This presumption appears repeatedly in reasonable accommodation cases under the Americans with Disabilities Act (ADA). Courts often use some variation of the phrase “attendance is an essential function” almost as boilerplate when explaining why a plaintiff is not entitled to a reasonable accommodation such as telecommuting or a flexible work schedule. One also sees this “full-time face-time norm” appear in Title VII disparate impact cases involving female employees who also have primary caregiving responsibilities. In these cases, courts often treat an employer’s practice of requiring full-time face-time attendance as a basic component of a job, rather than the type of “particular employment practice” that is subject to challenge as part of a disparate impact claim. Continue reading "Reconsidering the “Full-Time Face-Time Norm” After COVID-19"

Comparative (Tax) Scholarship is for Everyone, and Everyone Can Make It Better

Kim Brooks, A Hitchhiker’s Guide to Comparative Tax Scholarship, 24 Fla. Tax Rev. 1 (2020).

Justice Louis Brandeis famously described U.S. states as “laboratories” in which citizens can authorize their sub-national governments to “try novel social and economic experiments.” His logic surely also applies to nations as well, with countries around the world offering a wealth of real-world experiments from which we can all draw valuable insights.

Kim Brooks knows quite a lot about comparative legal scholarship (tax studies in particular), but she understands that most people have only passing familiarity with that vast body of literature. She also understands that most every scholarly enterprise could profit from a comparative perspective but that most scholars do not have the time or inclination to become full-on comparativists. What to do? Continue reading "Comparative (Tax) Scholarship is for Everyone, and Everyone Can Make It Better"

A New Retributive Justification for Punitive Damages

Erik Encarnacion, Resilience, Retribution, and Punitive Damages, 100 Texas L. Rev. __ (forthcoming, 2021), available at SSRN.

Most American states permit the award of extra-compensatory punitive damages to tort plaintiffs if the defendant’s conduct was especially culpable. The conventional rationales for this practice are the value of punishing such conduct and the special need to deter it. Yet these rationales are focused entirely on the defendant: they explain why a defendant should pay more than compensatory damages but do not explain why that additional punitive award should be transferred to the plaintiff. And indeed, many states, under “split recovery” schemes, require that a specified proportion of a punitive damage award be paid to the state, not to the plaintiff. But critics of punitive damage awards are not satisfied by this response: they believe that transferring any nontrivial1 portion of a large punitive damage award to a plaintiff gives that plaintiff an unjust and undeserved “windfall.”

Can the practice of awarding substantial punitive damages to plaintiffs be justified? The literature on the propriety of punitive damages in tort law is enormous, but that literature has paid little attention to the “windfall” objection. The objection is not especially troubling to consequentialist or law and economics scholars: punitive damage awards help incentivize plaintiffs’ lawyers to fully investigate serious wrongdoing and may offer useful additional deterrence of especially culpable conduct. But corrective justice and civil recourse theories cannot so readily overcome the windfall objection, insofar as they emphasize the close bipolar relationship between defendant’s wrong and plaintiff’s injury, and between defendant’s duty to pay damages and plaintiff’s right to receive those damages. Continue reading "A New Retributive Justification for Punitive Damages"

The Case for a Federal RAP

Eric A. Kades, A New Feudalism: Selfish Genes, Great Wealth and the Rise of the Dynastic Family Trust (“DFT”) (2019), available at SSRN.

In a majority of U.S. jurisdictions, at least for purposes of trust law, the Rule Against Perpetuities (“RAP”) is dead. Yes, it’s true. In recent years most states either substantially weakened or completely eliminated their Rules Against Perpetuities. This fact has major implications for the wealthy, and more so for the ultra-wealthy. Freed from the restrictions of the RAP, those with the means and inclination can now create trusts that entrench great wealth within their families forever.

Eric Kades is concerned about this. In his second article addressing the potential repercussions of RAP repeal, A New Feudalism: Selfish Genes, Great Wealth and the Rise of the Dynastic Family Trust (“DFT”), Kades proposes a reinstatement of the RAP, this time in federal form, something he wants to call “The National Anti-Feudalism Act.” This prescription comes after he engages in a kind of predictive analysis of the imagined estate planning of the ultra-wealthy, improbably informed by his reading of evolutionary biology. According to Kades, evolutionary biology should play a “significant role” in “explaining patterns of inheritance behaviors.” Continue reading "The Case for a Federal RAP"

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