\u3ci\u3eChevron\u3c/i\u3e Without the Courts? The Supreme Court\u27s Recent \u3cem\u3eChevron\u3c/em\u3e Jurisprudence Through an Immigration Lens

The limits of administrative law are undergoing a seismic shift in the immigration arena. Chevron divides interpretive and decision-making authority between the federal courts and agencies in each of two steps. The Supreme Court may now be transforming this division in largely unrecognized ways. These shifts, currently playing out in the immigration context, may threaten to reshape deference jurisprudence by handing more power to the immigration agency just when the agency may be least able to handle that power effectively. An unprecedented surge in immigration cases—now approximately 90% of the federal administrative docket—has arrived just as the Court is whittling away the judicial role while expanding agency authority, significantly transforming traditional deference doctrine. In its immigration docket, the Court is shifting the judicial role away from questions of statutory interpretation and towards a mere evaluation of when the agency’s interpretation should be granted deference. Assessment of the “reasonableness” of the agency’s action has given way to marking the outer boundaries of agency action, merging the court’s traditional oversight analysis into a form of “arbitrary and capriciousness” review. The costs of the Court’s reformulation of Chevron are particularly visible in immigration law because recent legislation and structural changes at the immigration agency have already constrained judicial review. However, the reformulation of Chevron occurring in immigration law may threaten to remake administrative law generally. Unfortunately, these developments have received little scholarly attention. Understanding this transformation is imperative as ultimately we may be heading towards “Chevron without the Courts”—wherein the judicial interpretive role is being constrained in the very instances where agencies are least able to function effectively

Promoting Women’s Advancement in the Judiciary in the Midst of Backlash: A Comparative Analysis of Representation and Jurisprudence in Key Domestic and International Fora

Women’s advancement in the judiciary of the United States has been slow and uneven, and has long lagged behind other nations. Parity in representation remains distant, and the gains to date vulnerable to changes in administrations and fluctuating levels of state commitment to gender equality, with the recent global backlash to gender equality and international norms and institutions providing a critical example of this fragility. In this light, this Article argues that gender parity in the judiciary should not be viewed as merely a laudable goal. Rather, representation and parity should be viewed as fundamental state legal obligations under international law as well as critical mechanisms for achieving gender equality. This Article further situates the debates over gender equality and parity in the judiciary of the United States within the broader context of the global backlash to gender equality and global norms and institutions, shedding additional light on the ways that this backlash is playing out on American shores. In doing so, it re-conceives the attacks on gender equality in the judiciary in the United States and globally as both a reaction to and indicator of the foundational significance and strength of the legal obligations to achieve gender parity in national and international judiciaries. It also explores the role and impact of women judges in strengthening global law and institutions, and the roles they can play achieving transformative change by analyzing the impact of the decisions and decisionmakers in a unique quasi-judicial forum involving the United Nations Commission on the Status of Women. Ultimately, in re-framing debates over representation and parity and grounding them in legal obligations, this Article aims to contribute to the literature and strategies for achieving meaningful representation in the judiciary and gender equality in the United States and globally

Taxation and Incentives in the Business Enterprise

This book chapter discusses the tax perspective on business enterprise law with a comparative focus on the U.S. and Japan

The Emergence of New Corporate Social Responsibility Regimes in China and India

In an era of financial crises, widening income disparities, and environmental and other calamities linked to corporations, calls for greater corporate social responsibility (“CSR”) are increasing rapidly around the world. Though CSR efforts have generally been viewed as voluntary actions undertaken by corporations, a new CSR model is emerging in China and India. In a marked departure from CSR as it is known in the United States and as it has been developing through global norms, China and India are moving towards mandatory, not voluntary, CSR regimes. They are doing so not only in a time of great global economic change, but at a time when both countries are themselves undergoing massive economic and social change as they re-orient towards more market-based economies and seek to enter the ranks of global economic superpowers. This Article conducts a comparative analysis of the emerging CSR regimes in China and India. It examines why China and India are moving towards mandatory CSR regimes when other key global players have taken a largely voluntary approach. This article also begins an inquiry into some of the most significant implications of the CSR regimes now unfolding in China and India, and what these developments may mean for both countries as well as what other countries, including the United States, seeking to learn from China and India’s experiences. Finally, this article seeks to add to global debates over corporate governance models by enhancing understanding of the corporate governance developments and innovations now arising in China and India

Crisis, Rupture and Structural Change: Re-imagining Global Learning and Engagement While Staying in Place During the Covid-19 Pandemic

The COVID-19 pandemic led to unprecedented closures of national borders and the withdrawal of much of the social and cultural activities of society into the walls of the home. For us, educators focused on global engagement and analyzing international law and society, the abrupt retreat into the shelter of domestic walls disrupted the very subjects we were studying—inside and outside the classroom. In the pandemic’s first wave, most study abroad and international experiential programs were cancelled indefinitely, and the programs that continued had to operate in an environment of social distancing and uncertainty. We were forced to scramble to accommodate the needs of our students who were suddenly sent home or had travel plans cancelled. At the same time, the global nature of this and other ongoing crises (from humanitarian emergencies that spill across borders to the global impacts of climate change) underscored the need to prepare students for a future where both cross-border crises and the need for international collaboration and education will be heightened. These developments also highlighted the need for a variety of meaningful virtual alternatives for students to acquire the critical skills and knowledge needed to succeed in global and cross-cultural environments. Against this backdrop, in late spring 2020 we turned our focus to developing a course to turn the COVID-19 crisis itself into a virtual international learning opportunity. We aimed to utilize the shared experience of living through a pandemic that was now a global crisis as a starting point for the exploration of global perspectives and responses to crisis, and as a vantage point to help students link their current challenges and experiences to the impact of pandemic in the societies where they had planned to travel for work or study. Isolated in our homes with our own public and domestic lives collapsing and colliding, we aimed to create global connections by creating a space where we and our students could connect the ruptures created by the current crisis to the ruptures and reshaping of perspectives, world views, and personal trajectories that is the hallmark of a transformative global or intercultural encounter. Our goal was to deepen students’ empathetic, contemplative, and communication skills—critical components of global experiential education—while drawing upon literature and pedagogy in these areas and employing experiential learning techniques. The rise of protests related to the Black Lives Matter movement in the middle of the course added a new dimension to our plan and served as a catalyst for both ourselves and our students to move beyond the original course goals and metrics, and to utilize our experiences living through a crisis as to explore how individuals and societies create and grapple with structural change. Similarly, the clashes and re-drawing of lines between our homes, workplaces and classrooms created additional opportunities for connection and to replace reimaging our individual and collective futures. This reflective essay interrogates and records our goals, methods and experiences in creating this classroom space and pedagogical experience during a period of crisis. Ultimately, it memorializes how the experience of developing and teaching this course during the COVID-19 pandemic itself also served as a crucible that reflected the pressures of the pandemic experience, and how our attempts to catalyze change and global engagement for our students were transformative for our own professional and personal trajectories

Philanthropic Innovation and Creative Capitalism: A Historical and Comparative Perspective on Social Entrepreneurship and Corporate Social Responsibility

Each generation creates its own philanthropic bodies, with novel structures promising both increased sustainability and efficiency. From the seventeenth-century financial imperialists to today’s internet entrepreneurs, innovation, wealth, and philanthropy have moved in tandem, shaping one another and resulting in new philanthropic forms. The most recent of these emerging entities is the “for-profit charity,” which relies on market profits and market principles to replace donations and to maximize its impact. Current philanthropic literature praises these market-based structures as revolutionary innovations that enhance long-term sustainability, and the focus of legal reforms falls along these lines. Yet the legal literature fails to fully appreciate the lessons of history. Although state after state is authorizing or fostering the growth of such hybrid entities, and although these entities do have the potential to contribute to philanthropy in novel ways, without a broader set of legal and regulatory reforms, the new philanthropic entities now emerging will be unable to meaningfully harness market forces to enhance their philanthropic endeavors. The Articles argues that the key philanthropic innovation transforming society today is not the public-private hybrid model. An examination of the history of philanthropic innovation in the U.S. and in other nations exposes what the current legal literature largely overlooks. That is, historical and comparative case studies reveal that meaningful and lasting philanthropic change arises when philanthropic entities are able to capture and utilize the market innovations that are transforming society and leading to bursts of industrial or technological progress. Thus, groundbreaking philanthropic change comes when charitable entities can harness such transformative commercial and technological developments towards charitable ends. In this light, the most critical philanthropic innovation transforming society today is not the public-private hybrid idea, but rather the little-studied phenomenon of firms applying to philanthropy the ideas that made them successful in the marketplace. Understanding this underappreciated nexus between business and philanthropy is vital for harnessing the larger potential of new philanthropy, as well as for promoting regulatory action that can enhance both business and philanthropic innovation. Recognizing philanthropic entrepreneurialism as a reflection of, and reaction to, commercial innovations such as the development of capital-pooling models or internet social networks, is imperative for the design of a more proactive and efficient regulatory regime

The Pandemic Paradox in International Law

This Essay examines a series of paradoxes that have rendered the international legal order’s mechanisms for collective action powerless precisely when they are needed most to fight COVID19. The“patriotism paradox”is that disengagement from the international legal order weakens rather than strengthens state sovereignty. The “border paradox” is that securing domestic populations by excluding noncitizens, in the absence of accompanying regulatory mechanisms to secure adherence to internal health measures, accelerates viral spread among citizens. The “equality paradox” is that while pandemics pose an equal threat to all people, their impacts compound existing inequalities