5033 research outputs found
Sort by
Incentives to take care under contributory and comparative fault: The role of strategic complementarity
Get PDFPrevious literature on contributory versus comparative negligence has shown that they reach equivalent equilibria. These results, however, depend upon a stylized application of the Hand Formula and an insufficiently coarse model of strategic incentives. Taking this into account, we identify a set of cases where care by one agent significantly increases the benefits of care by the other. When such cases obtain under bilateral harm, comparative negligence generates greater incentives for care, but this additional care occurs only when care is not socially optimal. By contrast, under unilateral harm or asymmetric costs of care, contributory negligence creates socially excessive care. Therefore, it is possible to socially rank negligence regimes depending upon the symmetry of potential harm and costs of care. We discuss a potential reform, the Retrospective Negligence Test, that when applied in the case of bilateral harm would make comparative negligence optimal
Labor Redemption in Work Law
Get PDFPeople with criminal records must find and keep work to reintegrate into society. But private employers often categorically exclude candidates with criminal record histories, especially if the candidate is African American or Latinx. The conventional wisdom is that workplace laws offer little to address this problem. People with criminal records are not a protected class under Title VII, and many employers fear that hiring people with criminal records invites negligent hiring liability. Ban the Box privacy laws delay but may not deter overbroad criminal background checks
This Article challenges this standard account by shifting focus to the state in imposing arbitrary barriers to work. I expose a dignity interest in the removal of these unnecessary barriers, or “labor redemption.” I find foundations of labor redemption in successful constitutional challenges to denials of public employment and occupational licenses. Labor redemption is also, increasingly, a statutory right, in the automated sealing and expungement of old and minor criminal records, and issuance of state certifications of individuals as rehabilitated.
Reconceiving of these criminal justice reforms as work law protections can resolve structural limitations to Title VII and Ban the Box laws by providing evidence of rehabilitation, and permit courts to balance the redemption and security interests in negligent hiring claims. Labor redemption also offers a law reform approach to facilitate reintegration through work without imposing new legal obligations on private employers, or requiring an extension of existing employment laws. This Article’s assessment offers lessons for other areas in which private decision makers exclude candidates because of state-imposed stigmas, especially the close analogy of housing discrimination
Is Tort Law the Tool for Fixing Reproductive Wrongs?
Get PDFIn his 2019 book, Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law, Dov Fox offers a compelling argument for new torts allowing recovery for wrongful reproduction. These torts would include three sorts of cases, those where wrongdoing (whether negligent, reckless, or intentional) caused undesired reproduction; stymied desired reproduction; or confounded reproduction, causing birth of a child different than that intended by the parents. The likely defendants in these torts are gynecologists, urologists, sperm banks, and IVF clinics
BIPA: The Most Important Biometric Privacy Law in the US?
No full textIn May 2020, Clearview AI abruptly ended all service contracts with all non-law enforcement entities based in Illinois. The reason? It hoped to avoid an injunction and potentially large damages under one of the most important privacy laws in America: the Illinois Biometric Information Privacy Act (BIPA)
How the COVID-19 Response is Altering the Legal and Regulatory Landscape on Abortion
Get PDFThe CARES Act, a two trillion-dollar stimulus bill designed to fund the response to COVID-19 and address the many economic shortfalls created by the pandemic, offered the first arena for Democrats and Republicans to bring questions of abortion access into the COVID-19 response. Republicans successfully pushed for the application of the abortion restrictions to CARES Act funding vis-à-vis the Hyde Amendment. The Hyde Amendment was passed in 1976 as part of an appropriations bill and has been passed as a rider every year since. It prevents federal dollars from being used to access abortions except in cases where the life of the mother is at risk or in cases of rape or incest. The CARES Act incorporates the Hyde Amendment through reference to Public Law 116-94,1 the appropriations act that limits federal funding on abortion. The restrictions on funding apply to the supplemental awards for health centers2 as well as the coronavirus relief funds.3 These provisions allow for the expansion of the Hyde Amendment into the COVID-19 response including for healthcare providers involved in detection, prevention, diagnosis, and treatment of COVID-19.
State v. Oakley, 629 N.W.2d 200 (Wis. 2001)
No full textOn its face, State v. Oakley is a simple but egregious case about child support and reproductive rights. David Oakley, a father of nine, failed to pay the entire amount of child support he owed his children, and the State of Wisconsin charged Oakley with nine counts of intentionally refusing to provide child support under Wisconsin Statute 948.22(2). At the sentencing hearing in the Circuit Court, the Judge sentenced Oakley to prison on the first count, imposed and stayed an eight-year term on two other counts, and imposed a five-year term of probation consecutive to his incarceration. This was a reduced sentence because Oakley’s lawyer convinced the judge that Oakley would not be able to support his family from prison. Most controversially, the Judge conditioned Oakley’s probation on not having any additional children, unless, the court stated, it could be shown that “he is meeting the needs of his other children and can meet the needs of this one.” On appeal, Oakley argued that the condition of probation ordering him not to father additional children violated the Fourteenth Amendment and the Constitution of the State of Wisconsin. Deciding against Oakley, the appeals court found the ban on Oakley’s reproduction “entirely related to his fathering of children he is not inclined to support.” The court held that a condition of probation may impinge on a fundamental constitutional right as long as “the condition is not overly broad and is reasonably related to the defendant’s rehabilitation.
The Supreme Court Bar at the Bar of Patents
Get PDFOver the past two decades, a few dozen lawyers have come to dominate practice before the U.S. Supreme Court. By many accounts, these elite lawyers—whose clients are often among the largest corporations in the world—have spurred the Court to hear more cases that businesses care about and to decide those cases in favor of their clients. The Supreme Court’s recent case law on antitrust, arbitration, punitive damages, class actions, and more provides copious examples./= / \u3e/= / \u3eThough it is often overlooked in discussions of the emergent Supreme Court bar, patent law is another area in which the Court’s agenda has changed significantly in the past twenty years. After rarely hearing patent cases for several decades, the Court now decides three or more patent cases nearly every Term. This article presents an empirical analysis linking the Supreme Court’s increasing interest in patent law to the elite bar’s growing involvement in patent litigation. Though correlation does not prove causation, the article relies on a novel dataset of cert. petitions in Federal Circuit patent cases to suggest that the elite bar has, in fact, contributed to the growth of the Supreme Court’s patent docket. Among the article’s key findings is that, in patent cases, a cert. petition filed by an elite lawyer is three times more likely to be granted than a petition filed by a lawyer outside that group. And although elite lawyers account for only 16% of cert. petitions filed in patent cases, their petitions account for a remarkable 40% of the petitions granted. /= / \u3e/= / \u3eBecause patent appeals are centralized in the Federal Circuit, patent law lacks the circuit splits that the law clerks who sift through cert. petitions would normally look for in recommending that the Court grant review. But the presence of elite lawyers may not be an ideal proxy for cert.-worthiness. In fact, the increasing participation of those lawyers in patent litigation could help explain why the Court’s recent patent cases, though substantial in number, mainly involve issues of jurisdiction, procedure, and statutory interpretation—not the core areas of patent law where the Court’s input would be most useful
Federalism, ERISA, and State Single-Payer Health Care
Get PDFWhile federal health reform sputters, states have begun to pursue their own transformative strategies for achieving universal coverage, the most ambitious of which are state-based single-payer plans. Since the passage of the Affordable Care Act in 2010, legislators in twenty-one states have proposed sixty-six unique bills to establish single-payer health care systems. This paper systematically surveys those state legislative efforts and exposes the federalism trap that threatens to derail them: ERISA\u27s preemption of state regulation relating to employer-sponsored health insurance. ERISA\u27s expansive preemption provision creates a narrow, risky path for state regulation to capture the employer health care expenditures crucial for financing a single-payer system. While this paper illustrates how state proposals may survive ERISA, the threat of preemption drives states to structure their plans in convoluted ways that may undermine other systemic goals such as universality, solidarity, and streamlined administration.
This analysis demonstrates how ERISA\u27s uniquely broad preemption, coupled with its lack of waiver authority, elevates the interests of private employers above those of sovereign states and diminishes states\u27 abilities to serve as laboratories of health reform. We argue that this moment in health reform demands ERISA preemption reform. To restore balance to health care federalism and pave the way for state reforms of all kinds, this paper proposes federal legislative and jurisprudential solutions: amendments to ERISA\u27s preemption provisions, the addition of a statutory waiver, and/or a reinterpretation of ERISA preemption consistent with congressional intent and the presumption against preemption
Social Solidarity in Health Care, American-Style
Get PDFThe ACA shifted U.S. health policy from centering on principles of actuarial fairness toward social solidarity. Yet four legal fixtures of the health care system have prevented the achievement of social solidarity: federalism, fiscal pluralism, privatization, and individualism. Future reforms must confront these fixtures to realize social solidarity in health care, American-style
Color-Blind But Not Color-Deaf: Accent Discrimination in Jury Selection
Get PDFEvery week brings a new story about racialized linguistic discrimination. It happens in restaurants, on public transportation, and in the street. It also happens behind closed courtroom doors during jury selection. While it is universally recognized that dismissing prospective jurors because they look like racial minorities is prohibited, it is too often deemed acceptable to exclude jurors because they sound like racial minorities. The fact that accent discrimination is commonly racial, ethnic, and national origin discrimination is overlooked. This Article critically examines sociolinguistic scholarship to explain the relationship between accent, race, and racism. It argues that accent discrimination in jury selection violates constitutional and statutory law and focuses on Title VI of the Civil Rights Act of 1964, equal protection under the Fourteenth and Fifth Amendments, and the fair cross-section requirement of the Sixth Amendment. It situates accent discrimination within the broader problems of juror language disenfranchisement and racial subordination in the U.S. courts. Finally, it advocates for inclusive practices, namely juror language accommodation