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The Long Shadow Of Inevitable Disclosure
Get PDFA growing body of evidence has highlighted the human and economic costs associated with contractual restrictions on employee mobility. News accounts describe abusive use of non-compete clauses to prevent low wage workers from seeking better options. Economists, meanwhile, have demonstrated that innovation and economic dynamism may suffer when employers can easily prevent their employees from changing jobs. While state legislatures have attempted to address these concerns by restricting employers\u27 use of non-compete agreements, the Federal Trade Commission recently announced a plan to prohibit them altogether. As policymakers focus attention on contractual limits on employment mobility, however, a more insidious threat to employee mobility has flown below the radar. Trade secret law\u27s inevitable Disclosure Doctrine ( IDD ) comes in many shapes and sizes, but at its most extreme, it empowers courts to enter employment-blocking injunctions based on the threat that an employee will use her former employer\u27s secrets in her new job. In jurisdictions that adopt this version of the doctrine, employees exposed to trade secrets face the risk of a lawsuit if they leave to work for a competitor. Even in states that use the doctrine more sparingly, its definitional ambiguity increases the uncertainty and cost of job transitions, which in turn affects mobility in the state. This Article will contend that the IDD requires attention as a mobility-limiting doctrine, even in states that have not yet applied it in that way. In a moment of heightened awareness of the human and economic price of mobility-restricting contracts, this non-contractual, ex post restraint looks increasingly suspect. As policymakers narrow the circumstances in which employers can contractually limit their employees\u27 future prospects, they should repudiate the IDD, lest it undermine their reforms
Climate Services: The Business of Physical Risk
Get PDFA growing number of investors, insurers, financial services providers, and nonprofits rely on information about localized physical climate risks, like floods, hurricanes, and wildfires. The outcomes of these risk projections have significant consequences in the economy, including allocating investment capital, impacting housing prices and demographic shifts, and prioritizing adaptation infrastructure projects. The climate risk information available to individual citizens and municipalities, however, is limited and expensive to access. Further, many providers of climate services use black box models that make overseeing the scientific rigor of their methodologies impossible— a concern given scientific critiques that many may be obfuscating the uncertainty in their projections. Municipalities that want to challenge insurance and bond rating determinations must rally significant resources for modeling and data, a scattershot policing method at best. And when companies have access to sophisticated modeling about future impacts— some of them potentially devastating for entire communities—the decision to share that information has been largely left up to the corporation.
This Article argues that actionable and transparent information about our climate-changed future is a public good that the private sector cannot be depended upon to provide equitably or reliably. Further, all private climate services rely on upstream climate data and models that were collected and produced by an enormous network of public institutions. There are important lessons to be learned from the recent success of special interests in pressing for the privatization of weather data and services—a trend that has knock-on effects for weather forecasts globally. This Article urges state and federal governments to invest in their own climate services capacity at a scale not currently contemplated. Risk assessments lacking a scientific basis can lead to maladaptation across the economy. While it is a potentially limited matter of consumer protection or tort liability when a consultancy over-promises its analytical capabilities, it is a much larger problem if regulators themselves misunderstand the limits of uncertainty when designing risk oversight
The ALI Principles of the Law of Family Dissolution: Addressing Inequality Through Functional Regulation
Get PDFAs part of a volume commemorating the American Law Institute on its centennial, this Essay reflects on the ALI Principles of the Law of Family Dissolution. We show how the Principles’ drafters intervened in cutting-edge issues at a time of flux in family law in ways that elaborated a progressive agenda that would continue to gain traction in the years after the Principles’ publication in 2000. Beginning from the assumption that family law should reflect how people actually live, the drafters developed a functional, rather than formal, approach to legal regulation. Such an approach, they believed, could vindicate commitments to equality and advance family law reform goals of predictability, consistency, and fairness. Drawing on archival materials and interviews, we show how concerns with intra-family inequality—particularly gender-differentiated roles in different-sex couples—and inter-family inequality—particularly marital-status distinctions that dovetailed with the exclusion of same-sex couples—led the drafters to articulate generally applicable principles capable of accommodating families’ lived experiences.Explicit adoption of the Principles’ recommendations by courts and legislatures has been rare. Yet, we reject a view of the Principles as a failed project. We understand the Principles not simply as a directive to lawmakers and judges but instead as a meaningful intervention in ongoing debates among courts, legislatures, advocates, and scholars about the future of family law. In the intervening decades, the Principles’ functional approach, we show, has grown dramatically across jurisdictions, and this growth has been spurred in large part by efforts to eradicate inequality within and between families. Parentage law, for example, has turned to functional criteria to protect parent-child relationships regardless of the gender, sexual orientation, or marital status of the parent. While we find less concrete evidence of the Principles’ influence in the domain of adult-adult relationships, we nonetheless observe how the Principles’ status-based approach to nonmarital relationships continues to serve as a foundational authority in ongoing, and increasingly urgent, debates over legal remedies for unmarried partners
The Law of American Health Care, Third Edition
No full textA student-friendly casebook for the new generation of health lawyers in an evolving legal landscape, The Law of American Health Care emphasizes lightly, carefully edited primary source excerpts, plain-language exposition, focused comprehension questions, and problems for concept application. It introduces key themes and uses them as a conceptual anchor so when the law inevitably changes, students have tools to nimbly move forward. These themes include: federalism; individual rights; fiduciary relationships; the administrative state; markets and regulation; and equity and distribution. The book engages topics in-depth, to give students a comprehensive understanding of the most important features of health care law and hands-on experience working through cutting-edge issues.
New to the 3rd Edition: Current debates about government power among public health officials, legislatures, judges, and other state actors, including issues arising from the COVID-19 pandemic Public insurance materials reorganized so students can better absorb Medicare/Medicaid and apply lessons of the pandemic and litigation over various issues Solidification of ACA reforms, including surprise billing legislation and changes in the exchange subsidies that attempted to fill the Medicaid coverage gap Consolidated health care business organization materials New/revised materials and new cases in tax exempt entities and health care fraud/abuse, state action doctrine, and discrimination in healthcare/health insurance (including history of attempts to address health care discrimination, 1964 Civil Rights Act Title VI, ADA, HIPAA portability, ACA guaranteed issue, renewal, community rating, and Section 1557) Government enforcement’s more aggressive approach to labor issues Dobbs v. Jackson Women’s Health and ensuing state law chaos and federal/state conflicts Increased use of digital health care tools and telehealth driven by the pandemic Right-to-try movement and other features of biomedical research that became more relevant during the pandemic
Benefits for instructors and students: Practice-oriented approach immerses students in primary source materials that include judicial opinions as well as statutory, regulatory, advisory, and empirical sources used in practice Focused on needs of students practicing health care law in a post-ACA, pandemic-impacted world First health care law casebook to reorient federal law as central authority for health care regulation (as opposed to state or common law) Exploration of two major public insurance programs provided before discussion of private insurance options, intentionally suggesting the increasing primacy of social insurance in the U.S. and underscoring even the most uniform coverage (Medicare) is complex Intro chapter with critical organizing themes and in-depth case studies which are woven throughout other chapters, including more prominent emphasis on equity and distributive justice Text boxes highlight key lessons and help explain/enhance material Directed Questions, hypothetical Problems, and end-of-chapter Capstone Problems support focused reading and clearer synthesis of major issues Manageable length Focused on topics encountered in the day-to-day practice of health law Essential connective narrative without overwhelming notes New co-author with deep health care legislative and regulatory experiencehttps://scholarship.law.bu.edu/books/1364/thumbnail.jp
How Do Prosecutors Send a Message ?
Get PDFThe recent indictments of former President Trump are stirring national debate about their effects on American society. Commentators speculate on the cases’ impact outside of the courtroom — on the 2024 election, on political polarization, and on the future of American democracy. Such cases originated in the prosecutor’s office, begging the question of if, when, and how prosecutors should consider the societal effects of the cases they bring.
Indeed, prosecutors often publicly claim that they “send a message” when they indict a defendant. What, exactly, does this mean? Often, their assumption is that such messaging goes in one direction: indictment — and subsequent criminal process — will communicate to the general public a message of accountability regarding certain proscribed conduct. Using the context of socially prominent cases and foreign affairs prosecutions, this Article argues that prosecutors are comparatively ill-suited to consider such prosecutorial messaging because they lack relative capacity to appreciate societal response, or the divergent ways communities will make sense of criminal cases. This Article explains the mechanism of societal response as social meaning. It concludes by calling for democratization and decriminalization in criminal law
Brief of Amici Curiae Privacy and First Amendment Law Professors in Support of Defendant-Appellant and Reversal
Get PDFSTATEMENT OF INTEREST: Amici curiae are law professors and scholars of data privacy, constitutional law, and the First Amendment. Amici write to provide the court with scholarly expertise on the complexities of data privacy law and its intersection with the First Amendment. Amici have collectively written scores of academic articles and multiple books on data privacy, technology, the First Amendment, and constitutional challenges to state and federal privacy regulation.
Amici submit this brief pursuant to Fed. Rule App. P. 29(a) and do not repeat arguments made by the parties. No party’s counsel authored this brief, or any part of it. No party’s counsel contributed money to fund any part of the preparation or filing of this brief. Amici file this brief with the consent of the partie
The Need for Restatement of the Common Law: A Long Look Back
Get PDFRestatements of the common law, the chief achievements of the American Law Institute (ALI), fulfilled a need that had long been expressed by lawyers and judges in England and America. Supreme Court Justice Joseph Story, responding in 1837 to the Massachusetts state legislature’s inquiry whether common law should and could be codified, reported that there could be tremendous saving of effort and time by lawyers and judges if a group of experts set out in written form the agreed principles and doctrines of common law. Story did not advise that the legislature should enact this written text of common law, but rather that it be adopted by judges as a source of common law decision-making. Many centuries before Story’s report, lawyers in England had described their common law as “unwritten,” viewing this sometimes as a defect, sometimes as an advantage compared to Roman and canon law’s fixed texts. Complexity, uncertainty, inconsistency, and the ever-increasing volume of judicial case reports presented problems that were addressed in many ways over the centuries. One proposal, codification, provoked defenses of the common law as something that should not and could not be reduced to written form because that would eliminate the essence of the common law process. In the early twentieth century, American bar leaders and legal academics, weary of fighting about codification, coalesced around the ALI as a solution to the need for restatement of the common law
Two Approaches to Equality, with Implications for Grutter
Get PDFThe question “what is equality?”, applied to the distribution of resources across races, suggests the following answer: when there appears to be no need for a policy that focuses on improving the welfare of one race relative to another. There is another way to approach the same question: equality is when traditionally-recognized paths to advancement do not give preference to or disadvantage an individual because of his race. Notice the difference here is between end-state and process-based notions of equality, a distinction Nozick emphasized in his examination of justice in distribution. Nozick rejected end-state theories of justice in distribution. I side with Nozick’s approach and argue that the only morally justifiable and administratively feasible approach to determining equality in the distribution of resources across races is through a process-based definition. I explore the implications of this argument for Grutter v. Bollinger
Abandoning Animus
Get PDFThis Essay presents a preliminary set of arguments against the legal concept of animus grounded in actual practice. After considering the major reasons advanced in support of the animus approach as well as the main objections, I argue that the end of animus may come once we confront the limits of judicial capacity. First, judges have not been willing or able to resort to the animus rationale to call out bigotry where the evidence of hostility is robust. These failures suggest that projects founded upon judicial review to reduce hateful motivations may be overly optimistic. Second, on the occasions the Supreme Court has actually employed the anti-animus idea, it has done so haphazardly and problematically. Thus, the evidence of judicial use of the concept is not encouraging. Third, judges might not need the concept of animus to do the work of equality. Existing animus cases can be easily reimagined to emphasize the key principles and concerns of equality. Fourth, incentivizing litigants to make animus-based arguments may distract from core considerations, including the nature of the social good at stake and the material effects of unequal policies. If some or all of these observations are correct, it may be time to abandon animus
Third-Party Funders
No full textThird-party funding has evolved into a ubiquitous feature of modern litigation and has become even more prevalent in international arbitration, particularly in light of the high dollar amount of most arbitral awards. The menu of possible third-party funding arrangements is complex, innovative, and ever-changing. A third-party funder is a quintessential stakeholder in the success of all the phases of international arbitration, including the effectiveness of the funded party’s arguments to the tribunal, the negotiation of the settlement (if the case can be settled), the enforceability of the arbitral award (if the case cannot be settled), and the collection of damages and/or costs from the other side according to either a settlement agreement or an arbitral award. The remainder of this chapter surveys disclosure rules regarding third-party funding and describes the role of third-party funders as procedural stakeholders, financial stakeholders, and merits stakeholders within international arbitration