5033 research outputs found
Sort by
A Proposal for Taxing Cryptocurrency In the Midst of the COVID-19 Pandemic
Get PDFIn this article, the authors present the case for a globally effective remedial tax on cryptocurrency transactions that could help fund multinational relief efforts, such as providing aid to jurisdictions affected by the COVID-19 virus and countries fighting the opioid crisis
Have the ACA’s Exchanges Succeeded? It’s Complicated
Get PDFThe fight over health insurance exchanges epitomizes the rapid evolution of health reform politics in the decade since the passage of the Affordable Care Act. The ACA\u27s drafters did not expect the exchanges to be contentious; they would expand private insurance coverage to low- and middle-income individuals who were increasingly unable to obtain employer-sponsored health insurance. Yet, exchanges became one of the primary fronts in the war over Obamacare. Have the exchanges been successful? The answer is not straightforward and requires a historical perspective through a federalism lens. What the ACA has accomplished has depended largely on whether states were invested in or resistant to implementation, as well as individual decisions by state leaders working with federal officials. Our account demonstrates that the states that have engaged with the ACA most consistently appear to have experienced greater exchange-related success. But each aspect of states\u27 engagement with or resistance to the ACA must be counted to fully paint this picture, with significant variation among states. This variation should give pause to those considering next steps in health reform, because state variation can mean innovation and improvement but also lack of coverage, disparities, and diminished access to care
Trump\u27s Proposed Changes Would Effectively Abolish Asylum
No full textThis year is the 40th anniversary of U.S. asylum law. To celebrate, the Trump administration wants to obliterate it — and some of my clients will likely die as a result.
Since Donald Trump took office, successive attorneys’ general and officials in the White House have been intent — and unrelenting — in their drive to narrow asylum protections for some of the most vulnerable, including children, LGBTQ immigrants and survivors of domestic violence
Intersectional Approaches to Appearances: Jespersen v. Harrah\u27s Operating Co., 444 F.3d 1104 (9th Cir. 2006) (en banc) Judgment
No full textThis case concerns the termination of a female casino employee, Darlene Jespersen, based solely on her refusal to comply with her employer’s gendered appearance and grooming policy. The policy required that female employees wear a specific kind and style of makeup and wear their hair down and teased, curled, or styled, while it forbade male employees from wearing any makeup, having long hair, and wearing nail polish. Jespersen was discharged for refusing to wear makeup on the job, and she subsequently brought a sex discrimination claim under Title VII of the Civil Rights Act of 1964, alleging that the makeup requirement was discriminatory against women because it (1) imposed a greater burden on female employees than male employees, and (2) forced women to conform to a restrictive gender stereotype as a condition of employment.
The district court granted summary judgment in favor of the employer, reasoning that the makeup policy was reasonable, restricted men and women, and therefore did not violate Title VII. A three-judge panel affirmed the district court’s opinion, with the majority holding that Jespersen had failed to show that Harrah’s grooming policy affected men and women unequally and that a sex-stereotyping claim could survive only if the grooming standards amounted to sexual harassment. Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2004). We disagree with the original panel and reverse the district court’s ruling on both the disparate treatment and sex-stereotyping grounds
From Trulia to Akorn: A Ride on the Roller Coaster of M&A Litigation
Get PDFIn recent years, M&A litigation has experienced a dramatic increase, culminating with a peak in 2015, when over 96. of publicly announced mergers were challenged in a shareholder lawsuit. A large number of these lawsuits were frivolous and vexatious, since most claims were filed by plaintiffs\u27 attorneys just to extract some fees with little effort. Some abusive practices emerged, signalling an alarming exploitation of the system. One scheme that plaintiffs\u27 attorneys put in place was the disclosure-only settlement. There, the stockholders obtained some modest supplemental disclosures, the plaintiff\u27s attorneys got significant fee awards from the defendant directors and the defendant directors secured some blanket class releases from future claims. The scheme relied upon courts\u27 routine practice of approving any settlement, even when there is no benefit for the corporation or its stockholders. A correction became critical. At the beginning of 2016, the Delaware Court of Chancery with In re Trulia marked a doctrinal shift in the standard of judicial review for disclosure-only settlements, by requiring that supplemental disclosures deliver a 0plainly material benefit0 to stockholders and that any releases from liability be 0narrowly circumscribed.0 But the approach in Trulia is not without some limitations. While federal courts have soon followed Trulia with In Re Walgreen, other states have been slow and sometimes reluctant to do so.
Even if Trulia succeeds in restricting disclosure-only settlements, another tactic has arisen to replace it: the mootness dismissal S that is a voluntary dismissal coupled with the payment of mootness fees to plaintiffs\u27 attorneys by the defendant. Data on merger litigation show that, like on a roller coaster, after a decline post Trulia, the number of litigated deals rose again in 201Ø. Notably, 8Ø. of these claims were brought in a federal court and only 10. in Delaware. This trend is becoming more pronounced. A few of these lawsuits were settledµ most cases were voluntarily dismissed, and plaintiffs\u27 attorneys received a mootness fee. Clearly, plaintiffs\u27 attorneys developed an adaptive response to the Trulia standard and devised the new scheme to replace the old stratagem. Unlike in the disclosure-only settlement cases, the mootness dismissal is without prejudice for the class since the defendant obtains no release from future claims. Mootness fees are also on average much lower than the attorneys\u27 fees granted in a typical disclosure-only settlement. But, apart from that, the scheme is not less detrimental to corporations and stockholders. What is more, the Federal Rules of Civil Procedure do not explicitly allow a court to review mootness fees. Hence, in federal courts the new scheme can bypass any judicial scrutiny. This results in an additional opacity in the practice and explains the migration of cases to federal courts.
In ~une 2019, in House v. Akorn, a U.S. District Court in Illinois invoked its equitable powers and scrutinized the mootness fees. The judge extended the Trulia-Walgreen standard and, accordingly, ordered the plaintiffs\u27 attorney to return the fees to the corporation. An appeal is pending before the Ø th Circuit, and a landmark decision could be in the offing. We predict that the appellate court will affirm the district court\u27s decision. @et, the affirmation may not be enough to halt overlitigation. On the face of it, it would discourage plaintiffs\u27 attorneys from starting a lawsuit just to extract mootness fees. But plaintiffs\u27 attorney could continue in mootness fee practice, exploiting the lack of transparency. In fact, courts could apply Akorn only if they become aware of the mootness fee. Plaintiffs\u27 attorneys could also revert to the scheme of disclosure-only settlements and file claims in those jurisdictions that have a more tolerant standard for these agreements.
Trulia, Walgreen and Akorn (as well as other decisions) prove that the courts are reacting and correcting the abuse of litigation. Nevertheless, these decisions need to be confirmed, implemented and complemented. A failure by Trulia and Akorn to adequately address the issues could call into question the regulation-by-litigation model adopted by U.S. corporate law. The challenge cannot be underestimated, since some commentators are already advocating for a radical shift to a pure regulatory approach, such as the Anglo-Irish code and panel-based model.
Overlitigation, with its significant costs and non-existent benefits for corporations and shareholders, is the manifestation of the crisis of a litigation system which has devolved into a non-adversarial process. We argue that such devolution is the outcome of the delayed and ineffective management S by legislatures and courts S of some conflicts of interest and of some incentives to collude in the process. But we also contend that the courts are currently addressing those conflicts, collusions and procedural gaps. The roller coaster of M&A litigation is likely to continue but, hopefully, it will be a gentler ride
A New Compact for Sexual Privacy
Get PDFIntimate life is under constant surveillance. Firms track people’s periods, hot flashes, abortions, sexual assaults, sex toy use, sexual fantasies, and nude photos. Individuals hardly appreciate the extent of the monitoring, and even if they did, little can be done to curtail it. What is big business for firms is a big risk for individuals. The handling of intimate data undermines the values that sexual privacy secures—autonomy, dignity, intimacy, and equality. It can imperil people’s job, housing, insurance, and other crucial opportunities. More often, women and minorities shoulder a disproportionate amount of the burden.
Privacy law is failing us. Our consumer protection approach offers little protection. Not only is the private-sector’s handling of intimate information largely unrestrained, but it is treated as normative. This Article offers a new compact for the protection of intimate information. Fundamental civil rights and liberties, along with consumer protection, is at stake. The new compact seeks to stem the tidal wave of collection, restrict certain uses of intimate data, and expand the suite of remedies available to courts. It draws upon the lessons of civil rights law in moving beyond procedural protections and in authorizing injunctive relief, including orders to stop processing intimate data
Our Non-Christian Nation: How Wiccans, Satanists, Atheists, and Other Non-Christians are Demanding Their Rightful Place in American Public Life
No full textLess and less Christian demographically, America is now home to an ever-larger number of people who say they identify with no religion at all. These non-Christians have increasingly been demanding their full participation in public life, bringing their arguments all the way to the Supreme Court. The law is on their side, but that doesn\u27t mean that their attempts are not met with suspicion or outright hostility. In Our Non-Christian Nation, Jay Wexler travels the country to engage the non-Christians who have called on us to maintain our ideals of inclusivity and diversity. With his characteristic sympathy and humor, he introduces us to the Summum and their Seven Aphorisms, a Wiccan priestess who would deck her City Hall with a pagan holiday wreath, and other determined champions of free religious expression. As Wexler reminds us, anyone who cares about pluralism, equality, and fairness should support a public square filled with a variety of religious and nonreligious voices. The stakes are nothing short of long-term social peace.https://scholarship.law.bu.edu/books/1035/thumbnail.jp
Regulatory Monitors: Policing Firms in the Compliance Era
Get PDFLike police officers patrolling the streets for crime, the front line for most large business regulators — Environmental Protection Agency (EPA) engineers, Consumer Financial Protection Bureau (CFPB) examiners, and Nuclear Regulatory Commission (NRC) inspectors, among others — decide when and how to enforce the law. These regulatory monitors guard against toxic air, financial ruin, and deadly explosions. Yet whereas scholars devote considerable attention to police officers in criminal law enforcement, they have paid limited attention to the structural role of regulatory monitors in civil law enforcement. This Article is the first to chronicle the statutory rise of regulatory monitors and to situate them empirically at the core of modern administrative power. Since the Civil War, often in response to crises, the largest federal regulators have steadily accrued authority to collect documents remotely and enter private space without any suspicion of wrongdoing. Those exercising this monitoring authority within agencies administer the law at least as much as the groups that are the focus of legal scholarship: enforcement lawyers, administrative law judges, and rule writers. Regulatory monitors wield sanctions, influence rulemaking, and create quasi-common law. Moreover, they offer a better fit than lawyers for the modern era of “collaborative governance” and corporate compliance departments, because their principal function — information collection — is less adversarial. Yet unlike lawsuits and rulemaking, monitoring-based decisions are largely unobservable by the public, often unreviewable by courts, and explicitly excluded by the Administrative Procedure Act (APA). The regulatory monitor function can thus be more easily ramped up or deconstructed by the President, interest groups, and agency directors. A better understanding of regulatory monitors — and their relationship with regulatory lawyers — is vital to designing democratic accountability not only during times of political transition, but as long as they remain a central pillar of the administrative state
Shocking Technology: What Happens When Firms Make Large IT Investments?
Get PDFMany economists see information technology (IT) as central to understanding trends in productivity, labor’s share of output, and employment, especially as new “artificial intelligence” (AI) technologies emerge. Yet it has been difficult to measure its effects. This paper takes a first look at the economic impacts of large custom software investment by firms—“IT shocks.” Using a novel difference-in-differences methodology, we estimate the productivity of these shocks and the associated effects on revenues and employment and we explore the implications in terms of labor’s share and other variables, including heterogeneous relationships by industry, AI use, and time. In our preferred models, IT shocks increase firm productivity by about 5%, followed by increases in revenue of 11% and in employment of 7% on average. However, employment growth following IT shocks is small or negative in mature industries; also, it has been slower in recent years, reducing job reallocation and aggregate productivity growth. Also, labor’s share of revenue decreases and operating profits rise following IT shocks
Using the Anglo-American Respondeat Superior Principle to Assign Responsibility for Worker Statutory Benefits and Protections
Get PDFWhen viewed flexibly, not to find doctrinal rules, but rather to find insight from judges\u27 collective judgment on social values, the common law may have particular value for modern policy makers. For instance, a common law insight could set policy makers in both the United States (U.S.) and the United Kingdom (U.K.) on a promising path for defining when workers are to be protected and benefitted by employment statutes. That insight reflects the underlying rationale for the common law that made relevant the initial distinction between employees and independent contractors - the common law of vicarious liability through respondeat superior. This rationale is based on the appropriateness of cost internalization where there is an alignment of worker duties with employer interests. It presents a socially compelling reason for assigning responsibility for workers\u27 benefits and protections to an employing entity, or entities, with aligned interests, rather than to the workers or to the general society.
While statutory protections and benefits should be based on worker need, the alignment of worker duties with employer interests provides a critical principle of economic fairness for assigning responsibility for the protections and benefits. Where workers do not have sufficient control over economic resources to work in their own independent interests, rather than in line with those of some employer or employers, they are in a position of greater need than those workers who do have such control. Furthermore, in the absence of such resource control, their duties will be aligned with the interests of employers that presumptively should be responsible for the protections and benefits offered by modern employment statutes. This essay elaborates how the principle, which is expressed in the Restatement of Employment Law, applies to some difficult questions in the modern economy, including the treatment of workers employed by digital platforms and those with multiple potential employers