Volume 56, Issue 4

4 posts

Don’t Break the Bank, Build a New One: How Investing in Public Banks Can Solve Pensions’ ESG Problem

By Geeta Minocha

Pension funds are significant institutional investors with massive capital. Attractive, prosocial investment opportunities abound. Nevertheless, several roadblocks limit American pension managers from engaging in ESG investing, including ERISA, fiduciary rules, anti-ESG state laws, and institutional inertia. This impasse creates an opportunity for public intervention because the private sector may be failing to meaningfully adjust to meet societal goals. This Note argues that public banking may be an appropriate tool to distribute some pension capital to ESG goals, effectively enabling pensions to outsource their present ESG burden. Though currently a rarity in the United States, public banks can serve as sound investments for pensions while in turn using this invested money for prosocial initiatives.

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Just Cause We Can: Ending At-Will Employment and Avoiding Preemption

By Nathaniel Kazlow

Unlike most European countries, the United States does not generally provide “just-cause” protections for its employees, meaning most workers are employed “at will” and may be terminated for any reason whatsoever. Although federal and state laws shield many workers from discriminatory and retaliatory firings, these protections are not enough. States and municipalities can and should legislate additional safeguards, especially in low-wage industries most affected by employee turnover.

This Note argues that federal labor law does not preempt state laws and city ordinances that provide just-cause protections to workers. The Note begins by reviewing at-will employment in the United States and Machinists preemption, a doctrine that precludes state and local regulation of those aspects of labor-management relations that Congress intended to be regulated by market forces. After analyzing the circuits’ differing applications of the Machinists preemption doctrine, this Note argues that just-cause laws are best understood as setting permissible, minimum labor standards rather than as impermissibly interfering in the collective-bargaining process. Under such an interpretation, it follows then, that state and local just-cause laws should not be preempted by the federal National Labor Relations Act. The Note concludes by providing recommendations to states and municipalities on how best to structure their just-cause legislation, leveraging lessons learned from recent and decades-old statutes and case law.

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Actualizing Justice: Private Prosecution Regimes for Modern Social Movements

By Caroline L. Ferguson

The modern state enjoys a near monopoly over the prosecutorial system. Public officials, including local district attorneys, state attorneys general, and career prosecutors, enjoy enormous discretionary powers to decide who to charge, to determine what charges to bring, to make particular bail recommendations, to set the terms of plea bargains, and more. Rather than examining the broad discretion of the public prosecutor, this Note instead examines lesser-known private prosecution systems, where individuals, groups, and corporations bring criminal accusations.

This Note surveys the practice of private prosecution outside the United States. It then turns to look within the United States at the differing legal regimes that regulate private prosecution in the various jurisdictions that permit the practice. Ultimately, this Note asks what role private prosecution may have within modern social movements.

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Shielding Science: The Scientific Integrity Act and Enforcing Firewalls Between Science and Politics

By Emily J. Berman

During the Trump administration, civil servants, watchdogs, and elected officials repeatedly accused political appointees of censoring, altering, or otherwise interfering with the work of scientists and civil servants at federal scientific agencies. In deliberate contrast to his predecessor, from his first day in office, President Biden has stated his commitment to restoring scientific integrity. But is executive action enough? Should Congress complement these executive actions with legislation? If so, how may Congress best provide firewalls between staff at scientific agencies and those who would improperly hinder their work?

This Note analyzes the historical context of, limits to, and potential for legislative protections for civil servants at scientific agencies, with particular focus on the recent Scientific Integrity Act. This Act, which has been introduced in each of the three prior Congresses, would insulate staff at scientific agencies from certain kinds of improper political interference. To be more effective, however, a future version of the Act should be revised to include stronger enforcement provisions.

To explore the need for and promise of the Scientific Integrity Act, this Note first places the Act in its historical context. This Note then explores limits to other existing protections. Finally, this Note examines the Act itself, arguing that the Act includes key protective provisions but that it will fail to achieve its full purpose unless it adds stronger enforcement mechanisms. These proposed tools would empower relevant officials to better investigate accusations against high-level political officials and create possible consequences for those who violate the Act.

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