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Fifty More Years of Ineffable Quo? Workers’ Compensation and the Right to Personal Security
Get PDFDuring the days of Covid-19, OSHA has been much in the news as contests surface over the boundaries of what risks of workplace harm are properly regulable by the federal government. Yet the original statute that created OSHA—the Occupational Safety and Health Act of 1970—was not exclusively concerned with front-end regulation of workplace harm. Just over fifty years ago, the same Act mandated an investigation of the American workers’ compensation system, which consists of a loose network of independent state workers’ compensation systems. The National Commission created by the Act to carry out the investigation issued a report of its findings in 1972 and concluded that American workers’ compensation was neither fair nor adequate. The Commission made nineteen “essential recommendations” for the system’s improvement. The federal Department of Labor shifted into high gear to monitor state compliance with the recommendations under implicit, but vague, threat of workers’ compensation federalization if progress was not achieved. In what is perhaps the most interesting part of the story, nothing changed. Today, the Department of Labor no longer monitors workers’ compensation’s attainment of any benchmarks, although some organizations monitor workers’ compensation “trends.”
Lost in discussions of workers’ compensation is any sense of a baseline . Why does this matter? Because workers’ compensation was conceived as a “Grand Bargain” or “quid pro quo,” in which workers surrendered tort rights for adequate statutory benefits. This article contends that the absence of investigation as to whether workers’ compensation benefits are too low has effectively unmoored workers’ compensation from the faintest echoes of the tort rights for which it was exchanged. The article seeks to provoke discussion of what it means, as a matter of both policy and constitutional law, for a state to dispossess injury remedies by converting workers’ compensation from a reasonable substitute remedy for tort to a pale, anti-destitution law relegated to functioning as a form of “welfare.” The article explores the phenomenon of permanent partial disability benefits paid to workers for injuries according to bizarre schedules that are not to any degree based on workers’ lost earning capacity nor on any rational criteria that anyone can identify. Permanent partial benefits—the largest component of workers’ compensation indemnity benefits—are arbitrary.
In its essence this article is about whether state legislatures have carte blanche to annihilate meaningful remedies for workers wrongfully injured in the workplace. Furthermore, to the extent that state legislatures pursue such objectives, the article presses for recognition of a Blackstonian “absolute” right to personal security. Evisceration of remedies not only makes workers poorer, but also leads to their insecurity because they work for actors with insufficient incentives to act safely. The solution to the problem is for legislatures to be more transparent about the relationship between workers’ compensation benefits and foregone negligence remedies—particularly because the original Grand Bargain was struck at a time when negligence affirmative defenses would instantly defeat tort claims, a situation that no longer obtains. The time for benefit inscrutability and ineffability is over
Should Missouri Consider the Social Cost of Carbon in Policymaking?
Get PDFThe social cost of carbon (SCC) is a tool used by federal agencies to quantify the cost of carbon emissions in policymaking. As concerns surrounding climate change become more pressing, some states have also begun using the SCC in their own policies, rules, and regulations, while other states like Missouri have actively challenged the metric. In this article, Matthew Geer looks at the origin of the federal social cost of carbon and considers its effectiveness as a tool by state governments to guide policymaking that will prevent climate change from causing irreversible harm to Planet Earth.https://scholarship.law.slu.edu/lawjournalonline/1085/thumbnail.jp
The Implications of Legalized Marijuana on Establishing Probable Cause for a Warrantless Search
Get PDFA police officer pulled over a speeding automobile. As the officer approached the vehicle, the driver lowered her window, causing the unique odor of marijuana to escape into the air.[1] This smell immediately alerted the officer to the existence of a controlled substance and established probable cause to search the operator and car.[2] Not so fast! Sniff and search is no longer an automatic justification for law enforcement to conduct a warrantless search in those jurisdictions that have legalized or decriminalized cannabis.[3]
The Supreme Court has long recognized the “automobile exception” to the Fourth Amendment’s prohibition against unlawful search and seizures.[4] This precedent has provided the police with the power to perform a warrantless search if a reasonable suspicion exits that the vehicle is being employed to hide contraband or evidence of a crime.[5] The police have used this exception for many years to perform car searches premised upon the unique smell of marijuana.[6] However, recent case law suggests that they may no longer solely rely upon the odor of marijuana to support a search in some jurisdictions.[7] Medical marijuana and the approved recreational use of the drug, or decriminalization, which imposes civil but not criminal penalties for some levels of marijuana possession, are forcing law enforcement to reexamine their operating procedures involving the searching of a motor vehicle, or person, without a warrant.
Marijuana has a complicated legal narrative in the United States. While it gains increased acceptance in this country, state lawmakers and the judiciary are confronted with ongoing and novel issues about the drug’s legality and control.[8] This article will explore one of the current controversies involving marijuana: law enforcement’s reliance on smelling or seeing cannabis as establishing probable cause for suspicion of criminal activity. This is known as the “Plain Smell” Doctrine.[9] Many courts have allowed warrantless searches premised upon the smell of the drug. However, if the substance is legal or decriminalized in a specific jurisdiction, should its odor still permit a warrantless search by law enforcement?[10] That question is the focus of this article.
[1]. Paul Stein, Court Rules Marijuana Odor No Longer Probable Cause to Search, Stein Sperling (Jan. 22, 2019), https://steinsperling.com/court-rules-marijuana-odor-no-longer-proba ble-cause-to-search/.
[2]. Id.
[3]. Michael Rubinkam, In Era of Legal Pot, Can Police Search Cars Based on Odor?, AP News (Sept. 13, 2019), https://apnews.com/article/0ba2cf617a414174b566af68262ef937.
[4]. Id.
[5]. Id.
[6]. Id.
[7]. Stein, supra note 1.
[8]. Cece White, The Sativas and Indicas of Proof: Why the Smell of Marijuana Should Not Establish Probable Cause for a Warrantless Vehicle Search in Illinois, 53 UIC J. Marshall L. Rev. 187, 188 (2020).
[9]. Id. at 188.
[10]. Id
Doing Law School Wrong: Case Teaching and an Integrated Legal Practice Method
Get PDFSince its inception, the Langdellian case method has been used to teach legal analysis and reasoning to generations of U.S. law students. For nearly as long, business school faculty have used their own version of the case method to teach management decision-making. In law school, a “case” is an appellate court decision, which students must analyze in preparation for Socratic questioning. To business students, a “case” is a narrative problem they must solve before debating and defending their solutions in a moderated classroom discussion.
This Article asserts that neither of these two methods are optimal to prepare students for bar admission and the practice of law. After examining both methods in detail, with particular emphasis on the role of group work, the Article then considers IE Law School in Spain as a pioneer in the use of practical “case” problems to teach law and legal skills. It concludes with outline of a proposed Integrated Legal Practice Method, drawing on business school case teaching to provide students not only with substantive and adjective legal knowledge, but also with the skills necessary to begin the practice of law
Pretrial Release in Domestic Violence Cases: How States Handle the Notoriously Private Crime
Get PDFDomestic violence has plagued society for years. However, until 1994, domestic violence was not federally criminalized. Today, domestic violence affects over ten million Americans per year. Because of the criminal justice system’s slow reaction to domestic violence, how the criminal justice system handles domestic violence cases is far from ideal. Pretrial release in domestic violence cases is one area of domestic violence that is ripe for research, guidance, and change. Pretrial release brings to light a unique balance; defendants are presumed to be innocent, but at the same time, the fact of arrest may point to an ongoing risk of harm to victims if defendants are released pre-trial. With little known about which pretrial conditions are successful in non-domestic violence cases, the answer of how to strike the necessary balance is even more challenging. This Note examines the different approaches states use to assign pretrial release conditions to domestic-violence defendants who are granted pretrial release and proposes a model statute to address—and effectively account for—the risk of re-abuse and the rights of criminal defendants in pretrial release
Where Black Lives Matter Less: Understanding the Impact of Black Victims on Sentencing Outcomes in Texas Capital Murder Cases from 1973 to 2018
Get PDFThe systemic disregard for Black lives in America was on full display when footage of a police officer kneeling on the neck of George Floyd went viral. Mr. Floyd’s resultant death set off protests declaring that Black Lives Matter throughout the nation and across the world. While national attention rightfully turned to demanding police accountability for undue violence, the prevailing conversation also incorporated at least a declared concern for addressing institutionalized racism within the criminal justice system and other American institutions. The term of the day became “antiracism.” With regard to police killings, the lesson is that police officers disproportionately kill Black people in this country with impunity because our system of policing encourages such violence, and our legal jurisprudence protects that use of violence. Combining the Black Lives Matter declaration with antiracism ideals requires systemic changes that will directly address the disproportionate and racist outcomes of policing. When combined with the larger antiracist movement—the call for antiracist policies across American institutions—the Black Lives Matter movement provided a powerful model for revealing the historic lack of protection for Black people as they live and work in this country. Declaring that Black Lives Matter is a reminder that Black lives have value, too, and ought to be legally protected. However, even when there is a system that is arguably in place to vindicate the unjust loss of life, Black people still remain unprotected. The application of the death penalty in America reveals the troubling truth that Black deaths do not matter.
Scholars and advocates have long acknowledged that the death penalty is disproportionately applied to Black offenders. It is also well known that the race of a victim is a leading factor in a capital defendant’s risk of receiving the death penalty, with those convicted of murdering whites significantly more likely to receive the death penalty than those convicted of murdering Blacks. This Article takes an in-depth look at statistics covering the sentencing outcomes in capital murder cases in Texas from 1973 to 2018, revealing the clear evidence that race matters in the imposition of the death penalty. However, this Article does not simply join the chorus of voices that have recognized the racial disparity in the death penalty. Rather, the authors argue that the lesson from the Black victim effect on the death penalty decision fits into the broader, historic, and present-day context of devaluing Black lives. As the Texas example provides, the devaluing effect of Blackness is apparent. This is not simply a failure to recognize the value of Black lives—as the Black Lives Matter movement exposes—but a reflection of the societal view that Blackness actually reduces the value and importance of all things—from property to community spaces to ultimate humanity. In life, Black people are vastly under-protected by the law, and the same is true for Black people even in a system designed to exact retribution for death. When we accept the fact that the death penalty reveals that Black deaths do not matter, then it becomes apparent that there is not an antiracist fix for the death penalty other than its abolition.
In this Article, the authors present the most comprehensive data ever assembled on capital murder cases in Texas to affirm that the scope of the race of victim difference is jarring. This data shows how pervasive race is in death penalty outcomes. In every single comparison the racial disparity was statistically significant, and harsher punishment was associated with white victims than with African American victims, who clearly mattered less. The truth, of course, is that Black victims matter as much as any, even if the legal system and society haven’t recognized their value. Within a database of thousands of cases there are thousands of tragic stories of lives upended by acts of an almost unspeakable nature. The details differ from case to case, but across all those thousands of cases the race of victim disparity persists. The math is straightforward. Indeed, the odds against the patterns seen here—emerging by chance—are truly astronomical. The race of the victim matters in the Texas criminal justice system.
As a matter of jurisprudence and policy making, however, the meaning of this data is uncertain. When legislators debate the death penalty, racial disparities are among the most frequently cited concerns of opponents of the death penalty. Supporters of the death penalty, however, dispute both the math and the meaning of findings of racial disparities, taking particular offense at the suggestion that race influences sentencing or influences their own views. These authors argue that abolition is the only corrective approach. We must make the radical choice to uproot systems, like the death penalty, that allow the anti-Black biases in our national consciousness to not only thrive, but to be just. To do otherwise is to perpetuate a system where Black lives matter less
Post-Pandemic, but Not Post-Racial
Get PDFThe Fair Housing Rights Act and the Voting Rights Act have had measurable success in providing opportunities to address intentional discrimination in housing and voting contexts. Plaintiffs with evidence of direct illegalities have clear frameworks under which justice may be sought, and both Acts provide a path for relief upon violations of housing and voting rights because of one’s membership in a protected class. However, the disparate impact theories that are cognizable under both Acts have been scrutinized for lackluster results. Practitioners and academicians have written about and experienced the difficulties plaintiffs face in successfully proving that a particular housing practice or policy is the cause of specific discriminatory outcomes, given the interrelated factors that give rise to segregation. Similarly, the gutting of the preclearance requirements in the Voting Rights Act, coupled with the onslaught of voter suppression legislation in the last few years, create obstacles to satisfy the complicated “totality of the circumstances” test required to evidence disparate impact under the Voting Rights Act. In addition to critiquing the limits of each Act, this Article explains how racial disparities in poverty and health are exacerbated by these limitations. Systems and individuals seeking to exploit people of color through oppressive housing and voting laws rely on the failure of the Fair Housing Act and Voting Rights Act to eradicate segregation, with determinants in each sphere perpetuating the discrimination within the other. The Article sets forth federal action that can be taken to mitigate these inequities
Immigration Reforms as Health Policy
Get PDFThe 2020 election, uniting control of the political branches in the Democratic party, opened up a realistic possibility of immigration reform. Reform of the immigration system is long overdue, but in pursuing such reform, Congress should cast a broad net and recognize the health policies embedded in immigration laws. Some immigration laws undermine health policies designed to improve individual and population health. For example, immigration inadmissibility and deportability laws that chill noncitizens from enrolling in health-promoting public benefits contribute to health inequities in immigrant communities that spill over into the broader population—a fact highlighted by the still-raging COVID-19 pandemic. Restrictions on noncitizen eligibility for Medicaid and other public benefits contribute to inequitable access to health care. Moreover, visa restrictions for noncitizen health care professionals run counter to health policies promoting access to health care during a time of severe shortages in the health care professional workforce. It is time that health policy be incorporated into the immigration-reform debate, with Congress considering whether and how such reforms are helping to achieve health policy goals relating to improving individual and population health