Volume 2023, No. 3

Articles

Regulating Plain Language

Michael A. Blasie

What one scholar coined a “quiet revolution” in consumer contracts has been a half century in the making. And the revolution extends well beyond consumer contracts. Legislatures and regulators passed over seven hundred plain language laws infusing plain language into consumer contracts, notices, disclosures, government reports, court forms, election ballots, and more. They did so with one goal in mind: make legal documents more understandable. This shared goal crosses doctrines and pierces the traditional private law-public law divide. Yet, despite sharing a goal, lawmakers differ dramatically on how to achieve it. The result is a bizarre patchwork of constitutions, statutes, and regulations with massive variations.

Regulating Excessive Credit

Abigail Faust

(A)woke Workplaces

Michael Z. Green

With heightened expectations for a reckoning in response to the broad support for the Black Lives Matter movement after the senseless murder of George Floyd in 2020, employers explored many options to improve racial understanding through discussions with workers. In rejecting any notions of the existence of structural or systemic discrimination, let alone the need to address the consequences of such discrimination, certain groups have begun to oppose BLM by seeking to diminish any social justice actions. One of those key resistance efforts includes labelling in pejorative terms any employers that pursue anti-racism objectives via social justice statements or internal initiatives as being “woke” workplaces. These groups have also criticized employers who adopt diversity, equity, and inclusion training to help workers address racial differences by arguing these sessions apply divisive Critical Race Theory principles that discriminate against and seek to stigmatize white participants. By using CRT and woke labels as weapons, critics leave employers in the unenviable position of determining how to implement anti-racism trainings in an environment of BLM reforms and race discrimination concerns. These all-encompassing anti-anti-racism narratives now force employers to show how their DEI trainings and related initiatives do not discriminate against white employees.

Remote Work and the State Taxation of Nonresident Employees

Bradley W. Joondeph

The onset of the COVID-19 pandemic caused millions of Americans to suddenly begin telecommuting across state lines. In response, several states deemed the salaries of employees who had previously worked at workplaces in the taxing state to be “sourced” temporarily to that state. Some rival states contended this was unconstitutionally extraterritorial, but the Supreme Court ultimately declined to hear their complaint. This Article explains why these sourcing rules were constitutional. The Constitution only requires a state’s method for sourcing income to be “fair” or “rational.” Given the indispensable role of employers in generating an employee’s salary—and that the state of the workplace is the labor market into which the employee has purposefully sold their services—these rules met this standard. Indeed, nearly all existing state income-attribution rules (including New York’s controversial “convenience of the employer” regulation) are constitutional. The production of income involves the contribution of several activities, so assigning it to a particular location depends on value and policy judgments about the significance of those contributions—as well as the governmental services supporting those activities. These rules might be controversial as a matter of policy, but there is little doubt they are rational and reasonable. More importantly, the judiciary’s deference to these sorts of state judgments abides the Constitution’s deeper norms about the proper judicial role. Exacting judicial review of these types of rules would risk ensnaring the courts in an endless series of problems they lack the institutional competence to solve.

Equalizing Remediation

Chinonso Anozie

Environmental harm remediation occurs far less than it should in minority and low-income communities. One in six Americans live within three miles of a designated toxic waste or contaminated site, which causes a variety of health hazards. Frequently, these sites are located within minority or low-income communities. Multinational corporations and even governmental agencies sometimes intentionally or negligently exploit loopholes to escape responsibility, especially when poor or low-income communities are involved. Lead agencies that focus on remediation efforts tend to have fewer resources in poorer areas. By contrast, in affluent communities, offending companies commence remediation efforts much more quickly. Such disparate remediation efforts contravene the principle of environmental justice.

Delayed or inadequate environmental remediation exacerbates harm across the country, and it disproportionately harms numerous underprivileged U.S. communities. Often, environmental justice scholars and advocates focus on equal enforcement of current environmental protection laws. I argue current environmental protection laws leave room for unequal remediation, and equalizing remediation does not lie in the strict enforcement of current environmental protection laws, particularly, when similarly situated communities are involved.

How Much Do Investors Care About Social Responsibility?

Scott Hirst, Kobi Kastiel & Tamar Kricheli-Katz

Perhaps the most important corporate law debate over the last several years concerns whether directors and executives should manage the corporation to maximize value for investors or also take into account the interests of other stakeholders and society. But, do investors themselves wish to maximize returns, or are they willing to forgo returns for social purposes? And more broadly, do market participants, such as investors and consumers, differ from donors in the ways in which they prioritize monetary gains and the promotion of social goals? This project attempts to answer these questions with evidence from an experiment conducted with 279 participants that involved real monetary gains for participants.

Table of Contents