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The Moral Reading as a Practice: A Response to Three Comments on \u3cem\u3eFidelity to Our Imperfect Constitution\u3c/em\u3e
Get PDFIn recent years, many originalists have claimed a monopoly on concern for fidelity in constitutional interpretation. In my book, Fidelity to Our Imperfect Constitution, 1 I reject originalisms—whether old or new, concrete or abstract, living or dead. Instead, I defend what Ronald Dworkin called a “moral reading” of the United States Constitution, or a “philosophic approach” to constitutional interpretation. I refer to conceptions of the Constitution as embodying abstract moral and political principles—not codifying concrete historical rules or practices—and of interpretation of those principles as requiring normative judgments about how they are best understood—not merely historical research to discover relatively specific original meanings. Through examining the spectacular concessions that originalists have made to their critics, I show the extent to which even they acknowledge the need to make normative judgments in constitutional interpretation. I argue that fidelity in interpreting the Constitution as written requires a moral reading or philosophic approach, not any version of originalism or living constitutionalism. Fidelity commits us to honoring our aspirational principles, not following the relatively specific original meanings (or original expected applications) of the founders. Originalists would enshrine an imperfect Constitution that does not deserve our fidelity. Only a moral reading or philosophic approach, which aspires to interpret our imperfect Constitution so as to make it the best it can be, gives us hope of interpreting it in a manner that may deserve our fidelity
Rewrite of Meritor Savings Bank v. Vinson, 477 US 57 (1986)
No full textMeritor v. Vinson marks the first time the U.S. Supreme Court recognized hostile work environment sexual harassment as a violation of Title VII. It held that sexual harassment is not limited to quid pro quo harassment, where a woman is fired or financially punished for refusing a supervisor\u27s sexual demands. Sexual harassment that is severe or pervasive enough to alter the conditions of employment and create an abusive working environment also violates Title VII. Although feminists welcomed Meritor\u27s recognition of quid pro quo and hostile environment sexual harassment, the decision written by Justice Rehnquist has proved problematic for plaintiffs. Professor Angela Onwuachi-Willig, writing as Justice Onwuachi-Willig, rectifies many of these problems in her feminist judgment
The Internet of Heirlooms and Disposable Things
Get PDFThe Internet of Things (“IoT”) is here, and we seem to be going all in. We are trying to put a microchip in nearly every object that is not nailed down and even a few that are. Soon, your cars, toasters, toys, and even your underwear will be wired up to make your lives better. The general thought seems to be that “Internet connectivity makes good objects great.” While the IoT might be incredibly useful, we should proceed carefully. Objects are not necessarily better simply because they are connected to the Internet. Often, the Internet can make objects worse and users worse-off. Digital technologies can be hacked. Each new camera, microphone, and sensor adds another vector for attack and another point of surveillance in our everyday lives. The problem is that privacy and data security law have failed to recognize some “things” are more dangerous than others as part of the IoT. Some objects, like coffee pots and dolls, can last long after the standard life-cycle of software. Meanwhile cheap, disposable objects, like baby wipes, might not be worth outfitting with the most secure hardware and software. Yet they all are part of the network. This essay argues that the nature of the “thing” in the IoT should play a more prominent role in privacy and data security law. The decision to wire up an object should be coupled with responsibilities to make sure its users are protected. Only then, can we trust the Internet of Heirlooms and Disposable Things
A more fundamental distinction for the contemporary economy between employee and independent contractor status
Get PDFThe common law remains an intellectual battle ground in Anglo-American legal systems, even in the current age of statutes. This is true in significant part because the common law provides legitimacy for arguments actually based on policy, ideology, and interest. It also is true because of the common law\u27s malleability and related susceptibility to significantly varied interpretations.
Mere contention over the meaning of the common law to provide legitimacy for modern statutes is most often not productive of sensible policy, however. It generally produces no more than reified doctrine unsuited for problems the common law was not framed to solve. Yet, when viewed more flexibly, not to find doctrinal rules, but rather to find insight from the collective judgment of judges about the weighing of social values, examining the common law may have a different kind of use for modern policy makers
The Law and Spirit of the Accreditation Process in Legal Education
Get PDFIn 1995, Dean Richard Matasar published an essay in the Journal of Legal Education entitled Perspectives on the Accreditation Process: Views from a Nontraditional School. With characteristic acuity, he focused on the question whether the accreditation process promotes or discourages curricular experimentation and resource conservation, noting that [a]s we enter an era of scarcity of resources and diminished demand for legal education, traditional well-endowed schools will continue to flourish. For the rest of us, however, only the fittest and most clever will survive. Accreditation must serve this end
Blurred Lines between Third-Party Funders and Law Firms
No full textThe line between third-party funders and law firms is blurring. Originally, there were only two traditional types of third-party funding arrangements. In the first type, the third-party funder makes an agreement to finance the legal expenses of the claimant or respondent in a case in exchange for a portion of the claimant’s awarded amount, if the claimant wins, or a predetermined payment from the respondent. In the second type, a third-party funder makes an agreement to finance a law firm’s single case or portfolio of cases in exchange for a negotiated rate of return. In both types of traditional third-party funding, the third-party funder remains a separate legal entity from both the funded party and the law firm. Therefore, the traditional third-party funding transaction is often depicted as a triangle with the three corners representing the party, attorney and funder. Now there is new evidence that third-party funders are transitioning from being external investors in parties or law firms to becoming internal partners or owners of parties and law firms. This brief essay focuses specifically on third-party funders partnering with law firms
Facebook’s emotional contagion study and the ethical problem of co-opted identity in mediated environments where users lack control
No full textWe argue a main but underappreciated reason why the Facebook emotional contagion experiment is ethically problematic is that it co-opted user data in a way that violated identity-based norms and exploited the vulnerability of those disclosing on social media who are unable to control how personal information is presented in this technologically mediated environment
Recent Developments in Bankruptcy Regulation: Mortgage Servicing Rules, the FDCPA, and the CFPB
Get PDFMS. DEPPERT: Welcome back. Before we begin, I\u27d like to take this opportunity to introduce you to our second panel of the day, our Consumer Panel, which will discuss Recent Developments in Bankruptcy Regulation, including mortgage servicing rules, the Fair Debt Collection Practices Act (the FDCPA ), and the Consumer Financial Protection Bureau (the CFPB ). This afternoon we are privileged to have the following distinguished panelists join us. First we have Alane Becket, Managing Partner at Becket & Lee LLP, in Malvern, Pennsylvania, a law firm representing primarily consumer lenders in bankruptcy proceedings. Ms. Becket was elected to the Board of Directors of the ABI in 2009, where she served as the co-chair of the Consumer Bankruptcy Committee from 2009 through 2011. Ms. Becket currently serves on the Board of Directors of the ABI where she is a member of the Executive Committee and Vice President of Publication.
Next, we have Nick Wooten. Mr. Wooten is a solo practitioner living in Little Rock, Arkansas, whose practice primarily involves consumer litigation in the Northern District of Illinois, and selected consumer cases in various bankruptcy courts. Nick is nationally recognized for handling consumer claims including claims under the FDCPA and mortgage servicing abuse cases in bankruptcy courts, federal courts and state courts around the country.
Third, we have Ms. Sarah Mancini, Of Counsel for the National Consumer Law Center and also an attorney in the Home Defense Program at Atlanta Legal Aid. Ms. Mancini is a co-author of Georgia Real Estate Finance and Foreclosure Law, Collier on Bankruptcy, and National Consumer Law Center\u27s treatises on the Truth in Lending Act ( TILA ) and foreclosures in mortgage servicing.
Finally, moderating our panel today we have Professor Frederick Tung, Professor of Law and Associate Dean for Academic Affairs at Boston University School of Law. Professor Tung is a former law professor at Emory University, and has been a visiting professor at Harvard Law School. Professor Tung researches, teaches, and consults in the areas of corporate and securities law, bankruptcy, and the governance of financial institutions. So with that, I\u27ll turn it over to Professor Tung to begin the discussion
Law and Politics, an Emerging Epidemic: A Call for Evidence-Based Public Health Law
Get PDFAs Jacobson v. Massachusetts recognized in 1905, the basis of public health law, and its ability to limit constitutional rights, is the use of scientific data and empirical evidence. Far too often, this important fact is lost. Fear, misinformation, and politics frequently take center stage and drive the implementation of public health law. In the recent Ebola scare, political leaders passed unnecessary and unconstitutional quarantine measures that defied scientific understanding of the disease and caused many to have their rights needlessly constrained. Looking at HIV criminalization and exemptions to childhood vaccine requirements, it becomes clear that the blame cannot be placed on the hysteria that accompanies emergencies. Indeed, these examples merely illustrate an unfortunate array of examples where empirical evidence is ignored in the hopes of quelling paranoia. These policy approaches are not only constitutionally questionable, they generate their own risk to public health. The ability of the law to jeopardize public health approaches to infectious disease control can, and should, be limited through a renewed emphasis on science as the foundation of public health, coordination through all levels and branches of government, and through a serious commitment by the judiciary to provide oversight. Infectious disease creates public anxiety, but this cannot justify unwarranted dogmatic approaches as a response. If we as a society hope to ensure efficient, constitutional control over the spread of disease, it is imperative that science take its rightful place at the forefront of governmental decision-making and judicial review. Otherwise, the law becomes its own public health threat
Recent Cases: EEOC v. Abercrombie & Fitch Stores, Inc.: Religious Accommodation in the Workplace
Get PDFIn EEOC v. Abercrombie & Fitch Stores, Inc., the plaintiff, Samantha Elauf, was rejected from a sales clerk position because her headscarf clashed with Abercrombie & Fitch’s employee dress code.1 This code, Abercrombie’s “Look Policy,” required all employees to dress in a “classic East Coast collegiate style” and prohibited “caps.”2 However, Elauf, a practicing Muslim, wore a headscarf (or “hijab”) as a representation and obligation of her religion.3 After Abercrombie rejected her employment application, the Equal Employment Opportunity Commission (“EEOC”) sued the company on Elauf’s behalf, alleging a Title VII violation for failure to accommodate a religious practice. The highly publicized case that ensued sparked a national debate about the scope of religious accommodations in the workplace. Ultimately, the Supreme Court granted certiorari to settle the controversy.4 In a nearly unanimous decision, the Court held that Title VII only requires job applicants to show that their need for a religious accommodation was a “motivating factor” in the employer’s adverse decision.5 Moreover, the employer need not have “actual knowledge” of the need.6 With this plaintiff-friendly rationale, the Court remanded the case, which later settled.7 This case note explores what equal employment and religious freedom advocates really took home—and what remains to be accomplished. All in all, the Court’s holding in Abercrombie may not have substantially increased protections for religious liberty in the workplace, but it was an incremental step in the right direction