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Biden’s attempts to diversify federal courts can’t come fast enough
No full textLast week, President Joe Biden rekindled the priority of diversifying the federal judiciary. Announcing his first slate of nominations, President Biden nominated a diverse group of 11 candidates. Three were African-American women nominated for appeals courts and another was the first federal judge in U.S. history who is a Muslim. And, aside from race and ethnicity, Biden drew from public defenders, military judges and other public servants — a broader range of legal expertise and life experience than did his predecessors, who tended to favor prosecutors and partners from white-shoe law firms
Trademark, Labor Law, and Antitrust, Oh my!
Get PDFI am allergic to antitrust law, but after reading Hiba Hafiz’s recent article, I understand that my aversion is problematic. This paper combines an analysis of trademark law, labor law, and antitrust law to explain how employers exploit trademark law protections and defenses to control labor markets and underpay and under-protect workers. For most IP lawyers and professors, this article will open our minds to some collateral effects of trademark law’s consumer protection rationale on other areas of law with important consequences for economic and social policies
Medicaid Waivers, Administrative Authority, and the Shadow of Malingering
Get PDFFrom 2018 through 2020, HHS approved state Medicaid demonstration waivers to impose new eligibility conditions such as work requirements, connecting current “personal responsibility” rhetoric and historical suspicion of malingering. The Biden administration reversed course but advocated to the Supreme Court for expansive administrative discretion. This approach supports health equity now but could enable reemergence of restrictive health policies down the road
The New Abortion Vigilantism
No full textThe abortion bounty law is novel and thus far unique to Texas, but similar civil enforcement regimes have a much darker history
Challenges in confirming drug effectiveness after early approval
No full textIt’s easy to understand the urge to make potentially beneficial drugs quickly available to patients in need. It’s also easy to go too far. Through its 2021 approval of Aduhelm (aducanumab) for treatment of Alzheimer’s disease, the US Food and Drug Administration (FDA) showed a willingness to embrace early approval pathways in ways that risk FDA’s reputation and undermine its core role in keeping the market free of worthless or dangerous medical products. Early approval pathways are intended to strike a careful compromise: access to promising therapies today, confirmatory evidence tomorrow. However, this often results in access—often at a hefty cost—accompanied by a persistent lack of evidence of benefit. To improve the balance between access and proof, we must understand why postapproval studies often flounder. Is it due to insufficient incentives for companies to pursue rigorous trials after approval, disincentives for patients to enroll in them, or both? To guide policy-makers in capturing the promise of early approval and to inform assessment of newly proposed pathways favored by some patient groups, we recommend careful empirical assessment of what is currently inhibiting postapproval studies and what could make them more successful
The Transparency of Quantitative Empirical Legal Research (2018–2020)
Get PDFScientists are increasingly concerned with making their work easy to verify and build upon. Associated practices include sharing data, materials, and analytic scripts, and preregistering protocols. This has been referred to as a “credibility revolution”. The credibility of empirical legal research has been questioned in the past due to its distinctive peer review system and because the legal background of its researchers means that many often are not trained in study design or statistics. Still, there has been no systematic study of transparency and credibilityrelated characteristics of published empirical legal research. To fill this gap and provide an estimate of current practices that can be tracked as the field evolves, we assessed 300 empirical articles from highly ranked law journals including both faculty-edited journals and student-edited journals. We found high levels of article accessibility (86% could be accessed without a subscription, 95% CI = [82%, 90%]), especially among student-edited journals (100% accessibility). Few articles stated that a study’s data are available, (19%, 95% CI = [15%, 23%]), and only about half of those datasets are reportedly available without contacting the author. Preregistration (3%, 95% CI = [1%, 5%]) and availability of analytic scripts (6%, 95% = [4%, 9%]) were very uncommon. We suggest that empirical legal researchers and the journals that publish their work cultivate norms and practices to encourage research credibility
The Respondeat Superior Principle and Interest Alignment: Assigning Responsibility for Worker Statutory Benefits and Protections
No full textWhat will our work lives look like in the future? Will workers see increased leisure time and greater social equality? Or will the gigification of work continue, with workers scrambling for ever-more-scarce jobs and resources? This book—which includes chapters by leading academics, policy makers, and lawyers—grapples with these topics. Using a variety of methodological approaches, chapter authors illuminate how questions about the future of work are really questions about labor and employment law; tax law; automation; redistribution; and more.
The book is divided into two sections. The first is focused on potential barriers to an economy that works for most people, including work law, trade policy, and automation. The second part is solution-focused, and authors explore a variety of specific policy and legal responses; these include changes to worker classification law, wage insurance, universal basic income, and guaranteed public employment. Readers will find that chapter authors often disagree with each other about what should be done, reflecting the current state of the high-stakes debate about the future of work
UNRWA and Palestine Refugees
Get PDFThis chapter studies the relationship between Palestinian refugees and the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). UNRWA’s role is to provide humanitarian ‘relief’ and to provide economic opportunities—‘works’—for refugees in the areas of major displacement: the West Bank, Gaza, Syria, Jordan, and Lebanon. Initially, the definition of Palestine refugee for UNRWA’s purposes was a sub-category of the United Nations Conciliation Commission on Palestine definition for purposes of relief provision, but it also included other categories of persons displaced from later conflicts. Following the passage of the Convention on the Reduction of Statelessness, the General Assembly authorized UNHCR to include stateless persons within its mandate. The Arab host States do not recognize Palestinians as falling under the international legal definitions of ‘refugees’ or ‘stateless persons’, however, and have refused to accept any UNHCR involvement vis-à-vis Palestinians in the UNRWA areas. The effect of these provisions is that Palestinians are excluded from UNHCR’s protection mandate in UNRWA areas, and since UNRWA has no durable solutions mandate, Palestinians have no access to durable solutions either as refugees or as stateless persons in UNRWA fields
Mandating Disclosure of Climate-Related Financial Risk
Get PDFClimate change presents grave risk across the U.S. economy, including to corporations, their investors, the markets in which they operate, and the American public at large. Unlike other financial risks, however, climate risk is not routinely disclosed to the public. Insufficient corporate disclosures have persisted despite the Securities and Exchange Commission’s (“SEC”) issuance of regulatory guidance on the topic, the emergence of voluntary disclosure frameworks and standards, and growing calls from major investors for improved disclosure. Given the inadequacy of the current regime, the SEC should take further action to fulfill its statutory mandate to protect investors and promote efficiency, competition, and capital formation. Specifically, the Commission should issue new, mandatory disclosure regulations that will yield comparable, specific, and decision-useful climate risk information. This report makes process-oriented recommendations relevant to the development of mandatory climate risk disclosure rules. The Commission should draw on existing frameworks and standards in crafting new regulations. The SEC should solicit input from financial and climate experts, investors, and voluntary reporting organizations by issuing concept releases and/or creating a climate risk advisory committee. The Commission should also draw on climate-related expertise at other federal agencies through interagency working groups. Finally, the SEC should increase its own expertise in this area by conducting economic research on climate risk through its Division of Economic and Risk Analysis. Taken together, these actions will facilitate informed investing, sustainable growth, and a more resilient economy
Supreme Court Precedent and the Politics of Repudiation
Get PDFThis is an invited essay that will appear in a book titled Law\u27s Infamy, edited by Austin Sarat as part of the Amherst Series on Law, Jurisprudence, and Social Thought. Every legal order that aspires to be called just is held together by not only principles of justice but also archetypes of morally reprehensible outcomes, and villains as well as heroes. Chief Justice Roger Taney, who believed himself to be a hero solving the great moral question of slavery in the Dred Scott case, is today detested for trying to impose a racist, slaveholding vision of the Constitution upon America. Likewise, the knowledge that he might wind up on the wrong side of history in part explains the anguished quality of Justice Felix Frankfurter’s dissent in the coerced flag salute case, West Virginia State Board of Education v. Barnette, for he had not merely lost the argument over what a post-war liberal order should look like, but also saw the consensus represented in his earlier opinion on the issue collapse as his colleagues abandoned him for Robert Jackson’s rights-centered vision of justice.But what exactly renders a particular legal outcome, which surely begins as a good-faith effort to do the right thing, a despised precedent over time? Some judicial rulings are infamous because they are one day cast aside with great fanfare, as Bowers v. Hardwick was by Justice Anthony Kennedy in Lawrence v. Texas or the Dred Scott case was through consistent denunciation by abolitionists and a dramatic defeat for the Slave Power during the Civil War. But other precedents are treated disdainfully through a more nuanced process of shunning or erosion, so that they remain formally alive but shamble about, a vestige of their former selves—Korematsu v. United States, Roe v. Wade, and Miranda v. Arizona might fall into this category. This is true even though there may have been efforts by judges to rescue some aspect of each of these decisions. Whether renounced openly or surreptitiously, each of these precedents has been deeply marked by public condemnation.This essay investigates the politics of repudiation—the socio-legal dynamics by which losers to a contest over the meaning of the U.S. Constitution seek to castigate and de-legitimate a controversial outcome. It will ask what actions can spur the sense of moral outrage with a judicial ruling, and what components are necessary to transform a precedent into an exemplar of public regret. The politics of repudiation begins with the notion that every judicial ruling is a first draft, a sketch of legal and political values. Judges’ words are only fragments, composed by a single collection of influential individuals reading a legal text for a particular moment in time. What a judicial ruling means in the social world depends on what it becomes. Along these lines, the command to obey that is intrinsic to every ruling is satisfied through compliance by those who are immediate parties to the controversy; no one else is obliged to endorse the constitutional vision sketched by judges who presided over that dispute. The republican and federalist design features of our constitutional order therefore join with the necessary cultural processes upon which every legal system must depend to foster a broad range of efforts to either entrench or contest a particular vision of law.What matters more than the ideas contained in a judicial opinion, then, is what average citizens and elites do with that legal decision once it reenters the stream of democratic discourse and, if they disagree with it, what steps they take to inscribe a very different narrative about that decision in the public imagination. Much of this work of public repudiation is done through unglamorous politics: activism of civic groups and church organizations that educates citizens and the enactment of local policies, state laws, and other texts through which the people turn a legal ruling into an object of obloquy. National party dynamics can play a significant role by sharpening and broadening the politics of repudiation. For instance, by making opposition to Roe a central tenet of the party platform and political identity, the Republican party helped make Roe reviled among a generation of conservative lawyers who now hold a majority of seats on the Supreme Court. These efforts have put conservatives on the cusp of codifying a final victory should the Court overrule that decision