Crown Attorneys, the Attorney General, and Judicial Discipline: A Comment on \u3ci\u3eLauzon v Ontario (Justices of the Peace Review Council)\u3c/i\u3e

Should the consequences for judicial misconduct be different depending solely on the identity of the person who makes a complaint? In a surprising decision, the Ontario Court of Appeal in Lauzon v Ontario (Justices of the Peace Review Council) holds that dispositions downstream from complaints by Crown attorneys (or any other member of the executive branch of government) should be lower than other dispositions because the vindication of such complaints is inherently dangerous to judicial independence and the separation of powers. In this comment, I look closely at the reasoning in Lauzon and respectfully suggest that that reasoning is problematic. In particular, I note that judicial councils operate independently and that Crown attorneys are subject to high standards as identified both by courts and by law societies as their professional regulators. I also suggest that the identification of this novel proposition was unnecessary to decide the appeal

Reverberations of Magna Carta: Work Injuries, Inkblots, and Restitution

This article argues that workers in the United States have been unconstitutionally undercompensated for their work injuries for at least a century. This provocative fact, coupled with statistics showing that over 120,000 people per year die from workplace injury and occupational disease, suggests a looming post-pandemic struggle for better injury remedies and safer workplaces. Workers’ compensation, the current state-based system by which American workers receive compensation for work-related injury and death, was obtained from legislatures as a “Grand Bargain,” the value of which has significantly deteriorated over time; and the constitutional coherence of which has been impacted by the obvious inadequacy of worker remedies. The bargain, in other words, has been breached; and the article argues for a “New Bargain” driven by worker consciousness of employer unjust enrichment from the original bad bargain. A New Bargain may be contractually renegotiated by labor unions in unionized industries; or it may emerge as a series of “shock absorbers” in reaction to national emergencies, like pandemics and extreme weather events; or expanded disease coverage, which COVID-19 revealed is virtually nonexistent. The New Bargain should be aggressively sought in brusque disregard of the fiction that workplace harm is necessarily accidental and thus damnum absque injuria. This tale was built on misinterpretations of the constitution that simply will no longer do. The article discusses “unenumerated rights” and contends that they exist and include federal guarantees to adequate remedies for tortious harm. More importantly, the article asserts that worker embrace of this idea can energize a spirit of restitution: what has been taken may be regained through mandatory federal bargaining and state-specific statutes. The article takes issue with inadequate benefits like, for example, arbitrary cutoffs in which workers receive paltry sums like $155,000 (total) for a lifetime of total disability (the maximum recovery in Kansas as of this writing). Given such shocking numbers, it can only be hoped that “welfare” or “social security” will fend off worker poverty. Although partially disabled workers were originally, in the early 20th century, entitled to a weekly benefit based on a percentage of the amount of wages lost as a result of a work injury, or on some estimate of the reduction of an injured worker’s earning capacity after the injury, for the full duration of the injury, this right is no longer recognized in most states. Instead, partially disabled workers are compensated under arbitrary benefit “schedules” bearing no articulated relationship to wages lost, or even to an explicit projected loss of earning capacity. All of this, the article contends, is broadly subject to worker revision, and this article provides an outline of first steps out of the morass

But for Borders: The Protection Gap for Internally Displaced Persons

Internal displacement, encapsulating the phenomenon of people who are dislocated from their homes but remain within the border of their countries of origin, was once a forced migratory occurrence interchangeable with cross-border migration. This changed after the Second World War with the promulgation of the 1951 Convention Relating to the Status of Refugees, which was premised on an insistence of making a legal line in the sand based on which side of a border displacement ultimately transpires. Internally displaced persons (IDPs)—in recent history, presently, and in the projected future—far outpace the number of people displaced outside the border of their home countries. Both rhetorical maneuverings and traditional international legal theories have prevented a robust exploration of normative frameworks that would ensure enhanced protections for the causes and experiences of internal displacement.This Article places the experiences of IDPs within the context of the politically charged project of labeling migration to inform the international governance of migration insofar as determining which populations forcibly on the move are deserving of international protection. It provides a comprehensive account of existing international, regional, and domestic displacement instruments, and highlights how international climate change and other general migration agreements fall significantly short of adequately addressing the phenomenon of ongoing and growing incidents of internal displacement. This Article offers a vision of forced movement that treats human mobility as incidents that are not static, but instead as often occurring on a continuum traversing physical nation-state borders. In doing so, it offers a re-framing of people on the move so that international legal mechanisms are germane to the critical project of extending protection to vulnerable communities regardless of which side of a border they face displacement

Gen Y More Black Corporate Directors

Corporate diversity has been in the spotlight for decades. Recent efforts have followed years of legal scholarship, arguments on the business rationale for greater diversity, and more recently, the racial unrest during the summer of 2020. Called by some, a “racial reckoning,” the summer of 2020 catalyzed many corporate declarations on the importance of diversity, and more to the point of this article, the necessity of righting the economic disadvantages of Black Americans. This article looks specifically at one intervention by a corporate player following summer 2020, Nasdaq’s volley to increase corporate diversity through required disclosure. This article reviews the state of Black representation on corporate boards: its history, proffered challenges and barriers, and calls to increase Black representation. Following a description of Nasdaq’s efforts, this article argues that disclosure of board demographics will be a powerful tool for increasing the ranks of Black corporate directors because of an important constituency, Millennials. Millennials exert influence as retail investors, clients of some of the largest institutional investors, and as consumers. The diversity, capital, social views, and ideas on corporate purpose shared by Millennials and their younger peers mean diversity disclosures can have material impact. This is important because diversifying the nation’s corporations can play a role in alleviating the centuries of economic exclusion meted out against Black Americans. This article is the first to connect the effectiveness of diversity disclosures on Black corporate representation with Millennials’ expanding investment activity. This confluence of factors makes Nasdaq’s disclosure rule an important model for others invested in diversity in the wake of recent U.S. Supreme Court jurisprudence