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Boden Lecture: Of Chameleons and ESG

Ever since the rise of the great corporations in the late nineteenth and early twentieth centuries, commenters have debated whether firms should be run solely to benefit investors, or whether instead they should be run to benefit society as a whole. Both sides have claimed their preferred policies are necessary to maintain a capitalist system of private enterprise distinct from state institutions. What we can learn from the current iteration of the debate— now rebranded as “environmental, social, governance” or “ESG” investing— is that efforts to disentangle corporate governance from the regulatory state are futile; governmental regulation has an inevitable role in structuring the corporate form

Innovator Ecosystem Diversity As A Global Competitiveness Imperative

Non

Withdrawing Lanham Act Section 2(c) Consent: What Should Courts Do?

Non

Armed and Under the Influence: The Second Amendment and the Intoxicant Rule After Bruen

In 2001, the Michigan Legislature passed a law prohibiting the possession or use of a firearm by a person under the influence of alcoholic liquor or a controlled substance. Presumably the legislature thought it necessary to prevent individuals from possessing a firearm while under the influence of drugs or alcohol. One study has indicated that alcohol misuse is keenly associated with firearm ownership, risk behaviors involving firearms as well as risk for perpetrating harm to one’s self or others. Researchers also found that an estimated 8.9 to 11.7 million firearm owners binge drink in an average month. In an attempt to combat gun violence and alcohol use, researchers have suggested restricting firearms for those who misuse alcohol or drugs. In light of the data, it is not unreasonable to think that the Michigan Legislature sought to prevent gun violence in connection with alcohol and drug use. However, such policies are clearly at odds with the original understanding of the Second Amendment. This Article argues that the intoxicant rule as a limitation on one’s Second Amendment rights is antithetical to the original public meaning of the Constitution. More simply, this Article argues that laws criminalizing and further restricting an individual’s right to bear arms due to intoxication are unconstitutional and directly contradict the original public meaning and tradition of the Second Amendment. Thus, this Article undertakes to explain that the foundational case on point, New York State Rifle & Pistol Ass’n v. Bruen, provides a clear basis for overturning the intoxication rule as an impermissible burden on the right to bear arms as protected by the Second Amendment

Forced Back Into the Lion\u27s Mouth: Per Se Reporting Requirements in U.S. Asylum Law

This Article makes a significant contribution to scholarship on asylum law by identifying and calling for the abolition of a deadly (but unexplored) development in asylum law: per se reporting requirements. In jurisdictions where they apply, per se reporting requirements automatically bar protection to asylum seekers solely because they did not report their non-state persecutors (such as cartels or domestic abusers) to the authorities before fleeing, even where reporting would have been futile or dangerous. These requirements similarly provide no exception where law enforcement openly support an applicant’s persecutor. This Article demonstrates that even though per se reporting requirements have no basis in asylum law, individual immigration judges throughout the United States have developed and imposed them surreptitiously on asylum applicants for over twenty years. These adjudicators have done so in the face of a rare precedential Board of Immigration Appeals (BIA) decision—binding on all immigration courts—rejecting the application of a reporting requirement in 2000. Even the BIA itself has applied reporting requirements in unpublished opinions since that decision, in direct opposition to its own precedent. While five courts of appeals have rejected these requirements, one has outright adopted them, and five have not taken a firm position on them. This Article argues that reporting requirements are a surreptitious—but noteworthy—attack on the lives and safety of asylum seekers and the rule of law. The administrative bodies and federal courts that apply these requirements not only shirk their duty to meaningfully review claims for protection (and, at times, ignore their own precedent), but also violate U.S. treaty obligations and perpetuate the violence against the very people they are supposed to protect. The Article also offers solutions for legislative, administrative, and legal advocacy to abolish per se reporting requirements and to protect the safety and lives of asylum seekers. These reforms would establish a system that complies with the letter and spirit of U.S. asylum law nationwide, ensures adherence to U.S. treaty obligations, and encourages adjudicators to fulfill their duty to consider the record meaningfully

Looking For Liability For Harmful Social Media Content And Cyberbullying After Gonzalez v. Google, LLC

Non

Willfully Forgetting Miranda\u27s True Nature: Vega V. Tekoh Severs the Warnings Requirement From the Constitution

This Article analyzes Vega v. Tekoh, in which the Supreme Court ruled that a violation of Miranda was not a violation of the Fifth Amendment privilege against self-incrimination. This Article examines the original language of the Miranda opinion, the statements and intentions of the members of the Miranda Court, and subsequent precedent to determine Miranda’s true nature. Further, this Article examines the reasoning of Vega and the dangers created by its pronouncements, especially in light of the Court’s earlier characterization of Miranda as a constitutional rule in Dickerson v. United States. This Article asserts that the Justices who joined the Miranda opinion clearly and repeatedly explained that Miranda’s warnings requirement was a constitutional right. Further, Miranda itself indicated that it was establishing a right included within the Fifth Amendment privilege against self-incrimination. Finally, this Article suggests that Vega’s cramped reasoning rejecting Miranda’s constitutional status, along with the Court’s inconsistent interpretation of Miranda over the decades, has not only fatally weakened Miranda’s warnings requirement but also undermined the Court’s own authority

Editorial Board

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Telecommuting and Workers\u27 Compensation in Wisconsin: Adopting Standards for the Work-From-Home Revolution

The modern trend of telecommuting has gained popularity in recent years, with many employees working from home in lieu of reporting to brick-and-mortar offices. Yet the law has failed to keep up with this trend, particularly in the context of workers’ compensation. And with the rise in telecommuting, a rise in workers’ compensation claims for injuries sustained in the home is likely to follow. While the common law provides a framework for resolving telecommuter claims in Wisconsin, this framework invites inconsistent application and fails to abide by the purpose of Wisconsin’s Workers’ Compensation Act. In anticipation of the inevitable rise in workers’ compensation claims for telecommuter injuries, the Wisconsin Legislature must address telecommuter claims in the state’s workers’ compensation statute. This Comment recommends that the Wisconsin Legislature amend the Workers’ Compensation Act to create clear standards for the compensability of telecommuter injuries. First, this Comment summarizes the history and background of the Workers’ Compensation Act while discussing how Wisconsin courts and the Labor and Industry Review Commission have resolved telecommuter claims. Next, this Comment will explore how telecommuter claims have been resolved in other jurisdictions. Finally, this Comment will analyze how Wisconsin can effectively adopt clear standards for telecommuter injuries and what those standards should require