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The New Social Contracts
Full text linkContracts rule our digital world. Platform terms of service determine speech rights, privacy rights, and much more. This is no accident—from the very beginning, the U.S. model of internet governance was explicitly built around private ordering. In this context, it is worth asking what contract law and contract scholarship have to say about the public harms of digital dealmaking.
The answer, quite surprisingly, is: not much. To be sure, the rise of the digital economy has generated over two decades of sustained scholarship and several huge national reform efforts aimed at updating contract law. But this work has largely focused on the procedural fairness of online agreements— especially mutual assent to clickwrap.
If ever there were a case to be made for contract law to interrogate both the substance and the social impact of an agreement, today’s platform terms of use are it. These are society-wide pacts, and while they are in part commercial agreements outlining the terms of a market exchange, they are also—unlike other commercial contracts—the basic ground rules for our digital society. Moreover, our public laws, from our speech laws to our surveillance laws, often defer to these private agreements, giving them the power to supply and even to supplant constitutional norms.
This puts contract law in an uneasy place—effectively leaving private law as the chief protector of public values on the internet. Having contract law play this role is not the first-best solution. Yet as long as we allow contracts to rule our digital society—as long as our internet policy is contractarian— contract law will and ought to play a larger role in policing the public impact of these agreements. In a sense, that would mean building a more publicminded contract law of the sort imagined by scholars going back to the Progressive Era. The alternative would be to give contracts less power to set public rules online. Choosing between these options will require comparative institutional analysis of a kind that is not common in law and technology debates.
The False Promise of Rescheduling
Full text linkOver the past fifty years, marijuana advocates invested considerable effort trying to reschedule the drug under the Controlled Substances Act (CSA). Multiple times, they pe- titioned the Drug Enforcement Administration (DEA) to take marijuana off the highly re- strictive Schedule I and move it to one of the statute\u27s less tightly regulated Schedules (II- V) or even deschedule the drug altogether. Along the way, they waged protracted legal battles with the agency over the tests and processes it uses for scheduling decisions. How- ever, advocates had very little to show for all their efforts. The DEA rejected every petition to reschedule marijuana. Although advocates won some minor victories against the agency in court, the two agency requirements that have posed the biggest obstacle to rescheduling have survived legal challenge. First, the DEA has insisted that marijuana must have a currently accepted medical use (CAMIU) to be moved off Schedule I. Sec- ond, the DEA has insisted that the only way to demonstrate that marijuana has a CAMU is by completing Randomized Controlled Trials (RCTs) that prove the drug is effective at treating some medical condition. In past scheduling decisions, the Department of Health and Human Services (HHS) applied these same requirements and advised the DEA that marijuana had to remain on Schedule I because there were no scientific studies that met the agency\u27s standards for demonstrating CAMU (i.e., there were no RCTs establishing the drug\u27s medical efficacy). Perhaps more worrisome, there is no guarantee advocates will ever be able to meet the agency\u27s lofty demands
MFW DEFENSE AVAILABLE DESPITE CONTROL STOCKHOLDER’S REFUSAL TO NEGOTIATE WITH CREDIBLE COMPETING BIDDER
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Too Stubborn to Care for: The Impacts of Discrimination on Patient Noncompliance
Full text linkThe role of implicit racial biases in police interactions with people of color has garnered increased public attention and scholarly examination over time, but implicit racial bias in the healthcare context can be as deadly, particularly when it intersects with ableism and sexism. Researchers have found that medical providers are more likely to consider Black patients “noncompliant,” meaning the patient has not adhered to recommended treatment, even without evidence Black patients are less compliant than other patients. Being labeled noncompliant can have grave health consequences; providers are less likely to treat pain aggressively when they consider a patient noncompliant and, subject to certain legal and professional constraints, can deny care altogether.
Existing legal scholarship has identified thoughtful proposals to limit providers’ ability to reject noncompliant patients; this Article expands upon that work by focusing attention on why Black patients are perceived as less compliant in the first place. This Article further examines the ways in which, among other barriers to compliance, systemic forms of discrimination can lead some patients to actually become noncompliant. To address the impacts of discrimination on patient noncompliance, the Article first builds from a concept in disability civil rights law concerning reasonable modifications. The Article calls for providers and the healthcare system to shift from expecting absolute compliance to providing both individualized modifications and those modifications that have collective benefit. The Article further calls upon providers to redesign their approach to patient care in ways that mitigate provider biases and structurally make it easier for patients to follow a treatment plan they agree with. In legal matters in which a patient’s reported noncompliance is relevant, the Article calls for legal decisionmakers and policymakers to account for how stereotyping and systemic discrimination can affect both providers’ perceptions of and patients’ actual reasons for noncompliance
Protecting Protected Characteristics: Statutory Solutions for Employment Discrimination Post-Bostock
Full text linkTitle VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Significantly, these protected characteristics are undefined, and judicial interpretations of race, sex, and national origin have allowed employers to lawfully discriminate against proxies for these protected characteristics. This Note examines the use of race-based hairstyles, gendered-appearance standards, and citizenship as proxies for race, sex, and national origin, respectively, and how the availability of such proxies inhibits Title VII’s goal of creating equal employment opportunities. The Supreme Court’s dicta in Bostock v. Clayton County offer potential redress to some victims of proxy discrimination through a protected characteristic plus proxy framework, but its application is limited and authority still unclear. Legislative intervention is likely necessary to strike the proper balance between equalizing employment opportunities and preserving employer autonomy to make employment decisions. This Note proposes varying levels of statutory enumeration—broad enumeration, narrow enumeration, and no enumeration—for race, sex, and national origin, respectively, to balance the competing goals of creating equal employment opportunities on the basis of protected characteristics and maintaining employer autonomy
On the Defensive: Analyzing Insurers\u27 Duty to Defend Pharmaceutical Companies for Contributing to the Opioid Epidemic
Full text linkOpioids have had a devastating impact on the United States. They have drained governmental agencies’ resources, decreased property values, and destroyed families and entire communities. A growing number of individuals, local governments, and states have filed lawsuits, aiming to hold pharmaceutical companies accountable for their negligent contributions to the epidemic. Such manufacturers, distributors, and retailers have called upon their insurers, asserting that their commercial general liability policies demand an insurer- backed and bankrolled defense. Courts are divided in their interpretation of the language contained within the at-issue policies. Some consider the claims made by certain states and local governments to stem from a “bodily injury,” as is necessary to trigger coverage. Others disagree.
Using a form provided by the Insurance Services Office, this Note construes the at-issue policies in conjunction with the underlying claims and evaluates the holdings reached by the Sixth and Seventh Circuits and the Supreme Courts of Delaware and Ohio. An analysis of the government’s claims reveals that they are too vague and attenuated to be covered, especially as they are the result of decades and decades of reckless pill-pushing. Ultimately, this Note concludes that the manufacturers, distributors, and retailers must be left to fend for themselves, given both the plain and unambiguous language of their policies and the ramifications of such a conclusion, socially and otherwise
New Digital Dangers to Democracy: How Artificial Intelligence Could Supercharge Black Voter Suppression
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Lower Courts After Loper Bright
Full text linkIf Loper Bright Enterprises v. Raimondo overrules or ousts Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., its “consequences will be enormous, and almost uniformly bad.” The decision will instantly destabilize federal law across all sectors of the national economy. It also will undo another longstanding precedent and reinforce the public’s negative perception of the Court. These effects are certain, and they are reason enough not to dislodge a bedrock principle. Less certain are Loper Bright’s precise effects on judicial deference and agency authority. Those effects depend on the new rule that emerges, as to which Court-watchers can now only place bets. The rule may reemphasize a reviewing court’s responsibility to decide all questions of law, replacing judicial deference to agency interpretations with de novo review, perhaps instructing courts to consult agency interpretations for guidance under certain conditions. The rule may reinforce a reviewing court’s obligation to ensure that Congress has delegated the authority that the agency asserts, perhaps imposing a “clearer statement” rule—requiring Congress to delegate the asserted authority more expressly than courts have previously demanded. The rule may require more than a general grant of authority to implement a regulatory program plus legislative “silence” concerning a particular requirement that the agency chose for that purpose, as in Loper Bright itself. This Article offers a prediction, or perhaps a hope: whatever rule Loper Bright announces or ushers in, the decision ultimately may have less practical effect in the lower courts than expected