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Regulating Mobility Limitations in the Franchise Relationship as Dependency in the Joint Employment Doctrine
Get PDFFranchisors often impose exhaustive operational standards on franchisees, and enforce those standards by restricting the mobility of their franchisees and their franchisees\u27 employees. But courts often ignore mobility limits when applying joint employer doctrine. This Article argues that courts and agencies should be more likely to find, and presume, that franchisors and their franchisees are joint employers under federal and state employment law based on proof that a franchisor restricts the mobility of franchisees or their employees. In so doing, this Article traces how the Chicago School\u27s efficiency arguments in favor of relaxing antitrust law enforcement of vertical restraints developed into a presumption that franchisors are not joint employers, despite modern antitrust law litigation showing that mobility restraints can harm workers. It concludes that preventing franchisor-imposed mobility restraints from harming workers will require courts, legislatures, and agencies to center subordinate firm dependency on lead firms in the joint employer doctrine
Palestinian Nationality and “Jewish” Nationality: From the Lausanne Treaty to Today
Get PDFThis chapter assesses the legal foundations of Zionist and Palestinian national claims over the land of Palestine since the British Mandate. It explores the legal basis and implications of the claim of Jewish nationality in Palestine and compares it with the claim of Palestinian nationality. The question of national rights, and who can claim them, is central to rethinking the statehood and residency rights of those living today in the area of historic Palestine. The law of nationality is at the core of the protections of peoples’ right to self-determination, and understanding the principles underlying nationality law is essential to separating claims from rights in considering Palestinian and Jewish peoples’ supposedly conflicting claims to residency and right of return.
The central premise in applying international nationality law to the conflict over territorial claims is that Palestinians possess a defined nationality that remains valid and legally cognizable today. Moreover, as a legal matter, Palestinian nationality is not negated by the claim of a Jewish state in Israel, or by an extraterritorial claim to Israel by Jews elsewhere in the world. In order to understand the difference between Israeli, Jewish, and Palestinian national statuses, it is critical to appreciate that the international law of nationality operates to protect a fundamental connection between peoples and their lands of origin: the territorial and direct “bloodline” connection, not a religious connection, determines national rights. This chapter will analyze the key norms of international nationality law, and apply them to the relevant legal instruments affecting the conflict over rights to territory in Palestine. It examines not only the application of the norms to this conflict, but also how (and whether) instruments such as the British Mandate, the Balfour Declaration, and the most relevant United Nations resolutions affected the claims of Jews and Palestinians to national status in the territory. In essence, this short excursus into the legal and historical background of the conflicting claims of self-determination to and in Palestine illustrates how “getting the law right” paves the way for a different and more equitable shared future in the same land for Jews and Palestinians, both those now living there and those who have the right to return there
The Constitution, the Common Good, and the Ambition of Adrian Vermeule
Get PDFPublic trust in the U.S. government has declined steadily over the last sixty years, from 73% in 1958 to 17% in 2018 (Pew 12/9/20). Public support for the U.S. Constitution has remained higher. When support for the government dipped to an all-time low of 15% in 2010, support for the Constitution stood at 74%. But the gap has narrowed. From 2010 to 2017 support for the Constitution fell from 74% to around 50%—a drop of 24 points in seven years (AP/NCC 8/12; Rasmussen 2017). These figures suggest that if Americans continue to believe that their government isn’t working, they’ll eventually believe that their constitution isn’t working
Are Arbitrators Biased in ICSID Arbitration? A Dynamic Perspective
Get PDFConcerns over arbitrator impartiality and independence in ICSID arbitration have led to reform proposals geared towards a multilateral investment court. Due to the ad hoc nature of appointments, it has been suggested that arbitrators may strategically render decisions in biased ways with the goal of encouraging reappointments. Although criticism against arbitrator bias has attracted significant attention, so far limited empirical evidence has been provided to support such concerns. This paper introduces a dynamic perspective to examine concerns of bias arising from ad hoc appointment. I find that contrary to conventional views held by critics of investor-state arbitration, on average, arbitrators tend to decide against their reputation from prior decisions in ICSID arbitration, which implies an effort to establish a reputation for being neutral and unbiased. This finding challenges one of the premises of proposals to replace arbitration with an investment court
An Education Theory of Fault For Autonomous Systems
Get PDFAutomated systems like self-driving cars and “smart” thermostats are a challenge for fault-based legal regimes like negligence because they have the potential to behave in unpredictable ways. How can people who build and deploy complex automated systems be said to be at fault when they could not have reasonably anticipated the behavior (and thus risk) of their tools?Part of the problem is that the legal system has yet to settle on the language for identifying culpable behavior in the design and deployment for automated systems. In this article we offer an education theory of fault for autonomous systems—a new way to think about fault for all the relevant stakeholders who create and deploy “smart” technologies. We argue that the most important failures that lead autonomous systems to cause unpredictable harm are due to the lack of communication, clarity, and education between the procurer, developer, and users of these technologies.In other words, while it is hard to exert meaningful control over automated systems to get them to act predictably, developers and procurers have great control over how much they test these tools and articulate their limits to all the other relevant parties. This makes testing and education one of the most legally relevant point of failures when automated systems harm people. By recognizing a responsibility to test and educate each other, foreseeable errors can be reduced, more accurate expectations can be set, and autonomous systems can be made more predictable and safer
The Case of the Nosy Neighbors
Get PDFInspired by companies like Clearview AI, Nextdoor, and Amazon, this case study asks students to assume the role of a high-ranking ethics-focused employee at a (fictional) neighborhood-focused social media company. It involves challenging ethical questions around how social media services and surveillance tools are built and used, and the complicated relationship between companies, their users, and law enforcement authorities. Students should pay particular attention to the values implicated by certain design decisions, and the competing incentives for corporations that might complicate the picture for ethical decision making
Silver Shingle Awards Gala
Get PDFEach year, we take a moment out of our busy schedules to celebrate the achievements of our alumni, faculty, and staff. This fall, we are thrilled to gather once again as a community to continue this tradition
The COVID-19 Pandemic and the Technology Trust Gap
Get PDFIndustry and government tried to use information technologies to respond to the COVID-19 pandemic, but using the internet as a tool for disease surveillance, public health messaging, and testing logistics turned out to be a disappointment. Why weren’t these efforts more effective? This Essay argues that industry and government efforts to leverage technology were doomed to fail because tech platforms have failed over the past few decades to make their tools trustworthy, and lawmakers have done little to hold these companies accountable. People cannot trust the interfaces they interact with, the devices they use, and the systems that power tech companies’ services.This Essay explores these pre-existing privacy ills that contributed to these problems, including manipulative user interfaces, consent regimes that burden people with all the risks of using technology, and devices that collect far more data than they should. A pandemic response is only as good as its adoption, but pre-existing privacy and technology concerns make it difficult for people seeking lifelines to have confidence in the technologies designed to protect them. We argue that a good way to help close the technology trust gap is through relational duties of loyalty and care, better frameworks regulating the design of information technologies, and substantive rules limiting data collection and use instead of procedural “consent and control” rules. We conclude that the pandemic could prove to be an opportunity to leverage motivated lawmakers to improve our privacy frameworks and make information technologies worthy of our trust
Information Technology and the New Capitalism
Get PDFHarnessing Digitalization for Sustainable Economic Development: Insights for Asia describes digitalization’s role in raising the productive capacities of economies. It examines how digital transformation can enhance trade, financial inclusion, and firm competitiveness, as well as how greater digital infrastructure investment, internet connectivity, and financial and digital education in the region can maximize digitalization’s economic benefits. It also explains the importance of striking the right balance between the regulation and supervision of financial technology to enable innovation and safeguarding financial stability and consumer protection.
Part I of the book seeks to build an understanding of digitalization’s effects on macroeconomic performance, including through trade channels and financial inclusion. Part II examines automation and the impact advancements in digital technology can have on firms via technology spillovers and the labor market. Finally, Part III highlights onward policy challenges for achieving sustainable and inclusive economic development outcomes amid accelerating technological change and demand for a more digitalized economy
Loving it to Pieces: EU Law in US Legal Academia, Revisited
Get PDFThe Editors of the Special Issue have kindly invited me to update earlier reflections on the state of EU law in US legal academia. For a variety of reasons, it is important to me not to mislead the reader with the false promise of some kind of summa. What follows is my own perception of a complicated landscape, which I shall sketch lightly here in the hop of prompting other scholars of EU Law to report on their own US experience