The ESG Gap

The corporate world is undergoing a transformation: there has been a dramatic influx in demand for companies to promote environmental, social, and governance (ESG) values. Yet these preferences do not necessarily translate into effective corporate actions. In this Article, we underscore the structural problems that prevent such preferences from steering the corporate ship full steam ahead toward ESG goals. We analyze the central actors in the corporate sphere that can potentially bring about such change on the ground: managers, institutional investors, and activist hedge funds. We demonstrate that none of these actors have the two central elements required for promoting ESG goals: motivation and competence. We refer to this problem as the ESG gap. We then suggest bridging the gap by forming a new entity, the Activist ESG Fund (AEF). The AEF would be an exchangetraded, closed-end mutual fund, uniquely designed for targeted activist investment. The closed-end traded fund structure would enable the fund management to focus on the long run by attracting patient money while permitting impatient investors to sell their shares on the highly liquid stock exchange. The establishment of AEFs can be a turning point in corporations’ and society’s effective promotion of ESG goals

The Market for Bankruptcy Courts: A Case for Regulation, Not Obliteration

Large corporate debtors typically file for bankruptcy only after conducting a thorough analysis as to the most favorable venue for the case. Recent legislation has proposed to severely limit all corporate debtors’ ability to select bankruptcy venue. The messaging behind calls for venue reform is outwardly altruistic: it is said to be necessary to facilitate access to justice and to prevent abuse of the system. However, the push for venue reform is largely driven by professional envy and a distrust of specific judges based on unpopular high-profile rulings. Placing new constraints on the ability to choose venue will not achieve the reform’s stated goals and may instead harm debtors and their creditors by limiting their ability to have complex bankruptcy issues heard in the venue to which they are best suited. A better approach is to facilitate a market selection process in which both debtors and creditors can participate, simultaneously enacting reforms that will facilitate creditor involvement and encourage uniformity among courts in matters of substantive and procedural law

War and IP

This Article examines wartime and postwar protection of intellectual property rights, with a focus on the Russo-Ukrainian War that broke out in February 2022. It begins by showing that armed conflicts are not new to the international intellectual property regime and that this regime already contains robust structural features and carefully drafted safeguards, limitations, and flexibilities to protect intellectual property rights holders during wartime. The Article then explores the international intellectual property obligations of countries that are parties to an armed conflict as well as those that are not directly involved but have imposed sanctions on belligerent states. This Article further outlines the different proactive measures that policymakers can introduce to help protect intellectual property rights holders during and in relation to an armed conflict. This Article concludes by probing the deeper theoretical questions generated by wartime and postwar experiences in relation to innovation theory, intellectual property law, and international law

Consumption Governance: The Role of Production and Consumption in International Economic Law

Over the last decade, international economic conflict has increased dramatically. To name only a few examples, the European Union banned the import of products from deforested land and is poised to impose duties on carbon-intensive imports; the United States banned Chinese imports made with forced labor; and countries the world over threatened to impose digital services taxes on U.S. corporations, leading to a new multilateral agreement on apportioning income tax revenue among countries. This Article argues that these conflicts represent a shift in norms governing the authority to tax and regulate international commerce. Different fields within international economic law describe the limits of state authority to tax and regulate international commerce in diverse ways. But I argue that a trans-substantive set of principles underlies the varied doctrines in international trade, international tax, and international antitrust. Throughout the twentieth century, international law’s jurisdictional limitations rested on the notion that production could be taxed and regulated primarily, and often only, by the producing country (what this Article terms “Production Jurisdiction”). As a result, international law often prohibited consuming nations from imposing taxes or regulations on imported goods and services if the taxes or regulations depended on the circumstances of foreign production. By contrast, nations today increasingly claim jurisdiction to tax and regulate foreign production based on their interest in controlling the kinds of activity that consumption within their borders supports (what this Article terms “Consumption Jurisdiction”). This Article makes three contributions. First, I describe the ongoing shift from Production Jurisdiction to Consumption Jurisdiction in international antitrust law, international tax, and international trade. Second, I argue that the shift from Production to Consumption Jurisdiction does not mean the end of globalization or the rise of protectionism. Rather, it reflects a change in states’ views on the role that national policy should play in creating a nation’s comparative advantage in the global economy. Third, I discuss the implications of the shift from Production to Consumption Jurisdiction

Garrity Immunity and the U.S. Armed Forces

The U.S. military is one of the nation’s largest and most important public employers. Given the unique nature of military service, the service branches have a strong interest in ensuring the integrity of their ranks. Yet the military lacks a critical force-management tool used by every other public employer to investigate workplace misconduct: the ability to demand answers to potentially incriminating questions under Garrity v. New Jersey, 385 U.S. 493 (1967). The Garrity solution, known as “Garrity immunity,” strikes a critical balance between the government’s interests in workplace oversight and accountability with the employee’s Fifth Amendment right against self-incrimination by immunizing the employee’s statements from being used in any future criminal prosecution. Given that service member misconduct and on-the-job mishaps can have grave consequences in the military, Garrity has the potential to serve as a critical tool for the military commander. This Article contends that despite the military’s separate and unique justice system and the increased protections against self-incrimination afforded to service members, as a matter of law, nothing prohibits the application of Garrity immunity to the military. Thus, this Article argues that, in certain circumstances and with appropriate safeguards, allowing military commanders to compel service members to answer questions that are directly related to their official duties under threat of administrative separation could promote the commander’s goal of achieving justice, good order and discipline, and the mission-readiness of his or her unit