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Differences by Race and Ethnicity in Title IX\u27s Effect on Women\u27s Health
Get PDFTitle IX greatly expanded adolescent females’ participation in athletic activities, which may have led to health benefits that extend into later life. Previous research has not explored whether health benefits arising from Title IX differ by race or ethnicity and has not examined women at older ages when health problems become more evident. This article examines the effect of Title IX on racial and ethnicity disparities in health outcomes by considering women aged 42–52 years. White women in these age groups exhibit declines in their self-assessed health status and increases in many health-related ailments, consistent with other evidence on temporal trends in health for women in this age range. Compared to white women, both Black and Hispanic women report the opposite pattern, as there is greater improvement in the post-Title IX period in overall health status. Black and Hispanic women also exhibit greater declines relative to white women in smoking rates post-Title IX, which should confer a broad range of risk reductions. The more favorable impact of Title IX on Black and Hispanic women indicates that investments in women’s sports may enhance both equity and efficiency
Compensating Differentials for Occupational Health and Safety Risks: Implications of Recend Evidence
Get PDFThe most enduring measure of how individuals make personal decisions affecting their health and safety is the compensating wage differential for job safety risk revealed in the labor market via hedonic equilibrium outcomes. The decisions in turn reveal the value of a statistical life (VSL), the value of a statistical injury (VSI), and the value of a statistical life year (VSLY), which have both mortality and morbidity aspects that we describe and apply here. All such tradeoff rates play important roles in policy decisions concerning improving individual welfare. Specifically, we explicate the recent empirical research on VSL and its related concepts and link the empirical results to the ongoing examinations of many government policies intended to improve individuals\u27 health and longevity. We pay special attention to recent issues such as the COVID pandemic and newly emerging foci on distributional consequences concerning which demographic groups may benefit most from certain regulations
How Regulations Undervalue Occupational Fatalities
Get PDFThe U.S. Occupational Safety and Health Administration establishes incentives for safety by setting and enforcing regulatorystandards. Using four and a half decades of inspection data, this article provides a comprehensive analysis of the factors underpinning penalties following fatalities. The “fatality premium” for regulatory violations following a worker death is quitemodest and is several orders of magnitude below the value-of-a-statistical-life figure needed to establish efficient levels of deterrence in the absence of all other financial incentives. Although there are low statutory caps on penalties, only 8% of thepenalties for violations involving fatalities are constrained by the cap, suggesting that current statutes establish norms for reasonable penalty amounts. In situations involving a fatality at firms with union representation during the inspection, theenforcement sanctions are more stringent. Fatalities involving migrant laborers are less heavily penalized
Why Punish Pharma for Making Medicine? Preserving Patent Protections and Cutting Consumer Costs
Get PDFThe push to lower pharmaceutical drug prices has taken a stronger foothold in legislative and executive actions in recent years. With average prices rising continuously over the past decade, many consumers struggle to pay for the medications they need-—insulin being the most often cited example. Accordingly, a variety of solutions have been suggested. Some solutions support reducing barriers for generic drugs to provide competition to the big brands, others push for greater regulation of manufacturers’ ability to price their drugs, and some proposals seek greater transparency to promote price negotiations, especially when compared to prices abroad. Most concerningly, however, one proposition involves restricting the patent system and curtailing patent protections offered to pharmaceutical manufacturers. Doing so would decimate pharmaceutical innovation, curbing the development of novel treatments for diseases such as Alzheimer’s and cancer. This Note argues that this must not happen-—the patent system must be left alone. The United States is the world leader in pharmaceutical innovation, carrying the bulk of associated expenses too, but this is only possible because of the incentives offered through the US patent system. Pharmaceutical companies, operating in capitalist economies, are just like any other business-—existing both to help the public and to seek profits. No other incentive system can match that of current patent protections, and without a way to compensate manufacturers for the billions of dollars and years of trials to bring a new medicine to market, innovation will simply halt. It is therefore vital that the patent system be left alone when considering methods to reduce prescription drug prices. However, doing so does not preclude the success of other proposed solutions. Working with pharmaceutical manufacturers to lower front-end development costs may achieve the desired effects, but penalizing these companies and metaphorically clipping their wings will not
The National Security Consequences of the Major Questions Doctrine
Get PDFThe rise of the major questions doctrine—the rule that says that in order to delegate to the executive branch the power to resolve a “question of ‘deep economic and political significance’ that is central to [a] statutory scheme,” Congress must do so expressly—threatens to unmake the modern executive’s authority over foreign affairs, especially in matters of national security and interstate conflict. In the twenty-first century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms.
In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare are generally based on extremely broad delegations of authority from Congress. The major questions doctrine (MQD) threatens the ability to fight modern conflicts for two reasons. First, classic national--security-related conflicts-—wars of territorial conquest, terrorism, or nuclear proliferation—- increasingly are met with economic measures. But the statutes that authorize economic warfare actions are incredibly broad and recent administrations have interpreted these statutes in ways that risk running afoul of an expansive and free-form MQD. Second, “foreign affairs exceptionalism,” in which the Court decides not to apply the MQD to statutes involving foreign affairs, is not likely to work well as a response because what is “foreign” and “domestic” cannot be easily distinguished and attempts to do so will have perverse consequences.
The MQD raises serious problems for foreign affairs and national security. If the MQD is applied to domestic, but not foreign, delegations, then the executive branch will have an incentive to use broad foreign affairs delegations to accomplish domestic policy objectives in order to evade the safeguards and limits that attend domestic administrative action. At the same time, judges will have to police the porous boundary between “foreign” and “domestic,” with especially high error costs because wrong decisions will affect national security. If the MQD is applied to economic delegations that touch foreign commerce, the most likely consequence is that judges—-particularly lower court judges-—will be put in the position of second-guessing executive branch decisionmaking on precisely those questions-— economic foreign policy questions of deep economic and political significance—-on which the political branches enjoy both constitutional primacy and institutional expertise. This result is troubling; judges lack the knowledge and training to make effective decisions bearing on foreign policy, and putting them in the position to do so contravenes the norms of our legal system
Ecolabeling in the Multinational Mining Industry: A Method toward Environmental Sustainability
Get PDFThe international mining industry\u27s environmental impact is not new. However, with the rise of international scrutiny on climate change and global warming, what the industry can do to lessen its impact is changing. Consumers are demanding stronger commitments to the environment from producers, and producers are therefore requiring stronger commitments from their suppliers. One such commitment the extractive industry can adhere to is implementing an ecolabeling regime for open pit mines mining critical minerals for consumer products. Ecolabels signal to customers that the environment is a priority for companies. However, with an ecolabel comes trade implications and concerns about accuracy. A nongovernmental organization should implement the ecolabeling regime to ensure credibility and monitoring while avoiding most of the concerns relating to restrictions on trade. This guarantees the mining industry does not just pay lip service to environmental sustainability
One of the Safeguards of the Constitution: The Direct Tax Clauses Revisted
Get PDFJames Madison\u27s insistence that the apportionment rule governing the imposition of direct taxes by Congress was a constitutional safeguard highlights a puzzle that has plagued constitutional law since the early days of the Republic. The Constitution does not bar Congress from imposing direct taxes, but twice provides that direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers. In times of crisis, notably during the War of 1812 and the Civil War, Congress levied direct taxes on real estate and slaves. It specified the aggregate amount to be collected by direct taxation, and apportioned this amount among the states according to population. Congress authorized the appointment of assessors to ascertain the value of such property in collection districts, and named collectors to receive payments from individual owners subject to the tax. Alternatively, states could pay their respective quotas to the Treasury, raising the required revenue under state laws. In that event there would be no further federal collection proceedings regarding individuals. Congress has not enacted a levy which it acknowledged as a direct tax since 1861. In practice, of course, the apportionment rule was difficult to administer and discouraged reliance on direct taxes as a source of revenue. Direct taxes may be laid, Charles A. Beard explained, but resort to this form of taxation is rendered practically impossible, save on extraordinary occasions, by the provision that they must be apportioned according to population .... Unless the tax basis was uniformly distributed across the country, the apportionment rule could lead to absurd consequences. The tax assessed upon individuals would be at different rates depending on the number of taxable persons in the jurisdiction. States, unlike Congress, retained the unrestricted power of direct taxation
White-Collar Courts
Get PDFArticle III courts are white-collar courts. They are, scholars have said, special. They sit atop the judicial hierarchy, and they are the courts of the one percent. We inculcate that sense of specialness in a variety of ways: federal courts are courts of limited jurisdiction; they are the subject of a (perhaps overrated) class in law school; we privilege clerkships with federal judges more than with state-court judges; and we focus more scholarly attention on federal courts than state courts. They are, in short, the courts of the elite- jurisdictionally, doctrinally, and socially. Perhaps the singular importance of federal courts was inevitable, but this Article explores that attitude\u27s darker side. White-collar courts privilege certain kinds of disputes and certain classes of litigants; federal courts prefer white-collar work to blue-collar work. Such privilege, this Article argues, creates expressive and attitudinal harms: it imposes a value judgment about the work of federal courts that denigrates some, while exalting others.
Over the last century, what this Article calls macro-judging --a term that, consistent with macroeconomics, describes institution-level judicial decisionmaking--has created opportunities for federal courts to express their preference for white-collar work in a variety of ways. Ostensibly to tackle two competing caseload crises--an increase in small, low-value litigation and an increase in the numbers and complexity of big cases-Article III judges have lobbied for, and created, procedural systems that have shifted work to other decisionmakers, increased their agenda-setting power, and entrenched their autonomy. Macro-judging has resulted in necessary and even benign or beneficial judicial programs, policies, and procedures. But these procedural and administrative shifts have also created pathways for preferential treatment of certain classes of cases and litigants, have endangered access to justice in federal courts, and may have created an attitudinal foundation for maximalist judicial rulings
Sex, Drugs, and Rock & Roll: Effectively and Equitably Moderating Vice and Illegal Content Online
Get PDFThe modern internet is vast, with more than 2.5 quintillion bytes of data created every day. Content is created, uploaded, downloaded, and shared across an increasingly large number of platforms. Most of this content is legal; however, some is illegal, including hate speech, child sexual abuse material, and content that violates intellectual property rights. Section 230 of the Communications Decency Act ( CDA ) provides that websites are not liable for content posted to their platform by third parties. Instead, websites determine their own content moderation policies, and the law assumes that they will do just that (given that exposure to graphic or otherwise upsetting content deters the average user).
This approach has been largely successful, but there are growing concerns about a proliferation of child sexual abuse material and sex trafficking content, and whether platforms are doing enough to prevent the spread of illegal content online. Adult content websites such as Pornhub and OnlyFans, which are hosts to legal pornography in addition to illegal content, have been a primary target of this concern. Congress\u27s attempts to legislate the issue have been ineffective: FOSTA-SESTA, passed in 2018, created an exception to § 230\u27s blanket grant of immunity for sex trafficking content, but has not been used in any prosecutions to date. Instead, private companies-most frequently, payment processors like Visa, Mastercard, and PayPal-are making decisions regarding vice and illegal content. In practice, this has involved shutting down payments to a website until the platform agrees to comply with the payment processor\u27s policies regarding content moderation and verification. While technically effective for victims of illegal content, this approach entails the mass disenfranchisement of legal sex workers.
This Note proposes a reconsideration of § 230\u27s blanket grant of immunity through a statutory revision resembling the Digital Millennium Copyright Act. The Act implements a notice-and-takedown model for copyright infringement, and a statutory revision to § 230 could do the same for illegal content. The notice-and-takedown model creates a content moderation strategy that prevents the rapid dissemination of illegal content. This Note argues that a notice-and-takedown model of liability for illegal content would respond to the needs of both victims and platforms without undermining the foundations of the free and open internet or disenfranchising legal sex workers
Ignorance of the Rules of Omission: An Essay on Privilege Law
Get PDFEvidentiary privileges--that is, rules that empower people to withhold evidence from legal proceedings-are one thread in a mesh of secrecy powers that control the flow of information in society. They are part and parcel of the laws, rules, norms, and practicalities that determine who can conceal and who can compel, that allocate power based on access to knowledge and its opposite. Despite the significance of privileges and of the harms that they produce, our understanding of this body of law has profound gaps.5 The questions posed above turn out to be more challenging than they might at first appear. Notwithstanding the hard work of privilege law scholars who have shed important light on these issues, we lack clear answers to them. In short, as this Essay will show, we do not know precisely what privileges are, where they come from, what harms they produce and for whom, or whether they are justified. What should we make of this second-order ignorance of the rules of omission? History and philosophy of science offer a particularly incisive way of thinking about ignorance that is useful for contemplating the gaps in our knowledge of privilege law. Philosophers have devoted an entire field of epistemology to the question of how we come to know what we think we know. But its corollary, the study of how we come to not know, has proven more scattered and elusive. Recognizing this gap three decades ago, historian of science Robert Proctor popularized the term agnotology to describe the study of ignorance. Key among Proctor\u27s insights-inspired by his personal experiences testifying against large tobacco companies that sought to manufacture doubt about the hazards of smoking is that ignorance is not merely the primordial state of knowledge yet to be received. On the contrary, ignorance can be actively produced. It can be virtuous (as in John Rawls\u27s veil of ignorance ) or deplorable. It can be a resource, a strategy, or a calculated amnesia. The insight that social forces create our knowledge landscape, including its lapses, leads to the following question: to what extent, if any, has our ignorance of privilege law been actively produced