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When Patients are Assailants: Valuing Occupational Risks
No full textIntentional violence against healthcare workers inflicts a physical and mental toll, motivating legislative proposals to better regulate these occupational risks. This article uses this context to address two novel issues for benefit assessment raised by injuries from assailants: potential heterogeneity in valuation based on the context of the injury risk and possible reductions in self-reported valuations when the exposed population has been trained to feel responsible for the risk. This article presents experimental evidence on workers’ preferences over the form of intervention: protection (risk reduction) or insurance (cost-sharing). The experiment also elicits worker valuations of occupational health care risks, calculating the value of a statistical injury (VSI), based on local wage-risk tradeoffs, in the general range of 40,000 premium per expected injury resulting from intentional harm. While health care workers do not generally require such a premium, health care workers in clinical positions require more compensation to face occupational risks. Insurance coverage for monetary losses is more highly valued than protective measures for accidental harms, though there is no significant comparable preference for insurance against intentional harms. The results have important practical implications for addressing the concerning phenomenon of violence against healthcare workers, suggesting that expanding insurance compensation would be desirable, as would assigning an intentionality premium to intentional injuries
Protecting What Matters: Reflections on a Central Bank\u27s Role at Times of War
Get PDFThis Article explores the important and multifaceted roles of a central bank in extraordinary times of crisis such as war, focusing on the National Bank of Ukraine (NBU) and its responses in the face of the Russian invasion of Ukraine which began on February 24, 2022. During a time of martial law, institutional preservation and legitimacy can be threatened, but preserving these very institutional tenets is important in defending the nation under siege and in securing future restoration and rebuilding. In this light, we examine the NBU\u27s difficult and conflicting choices in three respects: providing war finance, preserving banking and financial systemic stability, and catering for citizens\u27 financial welfare. The navigation of these difficult and conflicting objectives by the NBU reflects the challenges for its institutional preservation and legitimacy. However, we also argue that there is a role for international solidarity with the NBU, in relation to European central banks concerned with the financial needs of Ukrainian refugees abroad, and the network of central bankers in the Financial Stability Board
The Consensus Rule: A New Approach to Scientific Evidence
Get PDFFounded on good intentions but unrealistic expectations, the dominant Daubert framework for handling expert and scientific evidence should be scrapped. Daubert asks judges and jurors to make substantively expert determinations, a task they are epistemically incompetent to perform as laypersons. As an alternative, this Article proposes a new framework for handling expert evidence. It draws from the social and philosophical literature on expertise and begins with a basic question: How can laypersons make intelligent decisions about expert topics? From there, it builds its evidentiary approach, which ultimately results in an inference rule focused on expert communities. Specifically, when dealing with factual issues involving expertise, the legal system should not ask factfinders the actual substantive questions, but instead should reframe its questions to be deferential to the relevant expert community. To satisfy the requirement of proving causation in a toxic tort case, the question should not be: Does drug A cause disease X? The more appropriate question is: Does the scientific community believe that drug A causes disease X? This deferential approach solves the epistemic competency problem, repairs many of the unintended structural distortions created by Daubert, and ultimately reflects a better understanding of science
The Political Economy of WTO Exceptions
Get PDFIn a bid to save the planet from rising temperatures, the European Union is introducing a carbon border adjustment mechanism-essentially a levy on imports from countries with weak climate rules. The United States, Canada, and Japan are all openly mulling similar proposals. The Biden Administration is adopting new Buy American rules, while countries around the world debate new supply chain regulations to address public health issues arising from COVID-19 and shortages in critical components like computer chips. These public policy initiatives-addressing the central environmental, public health, and economic issues of the day-all likely violate World Trade Organization (WTO) rules governing international trade, as well as regional free trade agreements. This inconsistency poses a political problem domestically and a diplomatic problem internationally, to say nothing of potential consequences authorized by the WTO.
To ward off these consequences, governments will seek to justify their measures under a series of exceptions to trade obligations first drafted in 1947. Although governments have invoked these exceptions with increasing frequency in recent years, they have never been tested in the manner that they will be in the coming years. Indeed, a provision in the 2021 Infrastructure and Investment Act-the first major legislative piece of the Biden Administration\u27s economic agenda-contains a provision directing the government to invoke these exceptions to justify measures to manufacture personal protective equipment (PPE) in the United States.
This Article seeks to make sense of the exceptions and their role in the legal, political, and diplomatic proceedings that determine the fate of public policies that restrict trade. It distills three paradigms through which to view legal exceptions in international trade agreements. Under the Policy Space Paradigm, governments have the right to violate international obligations so long as the violation is necessary to pursue a public policy goal permitted by an exception. Under the Safety Valve Paradigm, exceptions excuse violations that are undeterrable, such as those motivated by overwhelming domestic political pressure. Both of these approaches, which are dominant in international legal practice, permit governments to invoke international legal exceptions only to the extent that the government acts with a single, permissible objective. In so doing, both paradigms rest on faulty assumptions about how domestic policymaking works.
I therefore introduce the Channeling Paradigm, which rests on the observation that international trade policies are the result of bargaining between domestic interest groups. Exceptions in trade agreements influence that bargaining process and the resulting domestic coalitions. Industries seeking economic protection will often ally themselves with groups pursuing non-trade public policy goals, such as environmental protection or public health. Both groups benefit. The domestic industry obtains protection from foreign competition by lending its political support to a public policy goal. Public policy advocates obtain important political support for policies that provide public goods that governments often undersupply, such as measures to protect public health, fight climate change, and address economic inequality. Counterintuitively, then, the domestic political bargaining that legal exceptions encourage serves the public interest by channeling protectionist pressure into the promotion of public goods.
The Channeling Paradigm has implications for dispute resolution under international trade agreements, as well as the drafting of new agreements. In short, existing tests for the application of trade agreements\u27 public policy exceptions unduly constrain domestic politics. This Article argues that trade tribunals and treaty negotiations should adopt a Predominant Motive test when interpreting and drafting exceptions clauses. Under this approach, a trade restrictive policy would benefit from an exception if the primary objective of the measure is a permitted goal under the exception. So long as it does not become the predominant purpose of the challenged policy, economic protection would not be fatal to invoking an exception. The WTO compatibility of a wide range of critical government policies that have mixed motives-including President Biden\u27s Buy American requirements that seek to address economic inequality within the United States; efforts to reshore critical U.S. supply chains with the goal of ensuring the United States has access to the components it needs to be a global leader in manufacturing; the European Union\u27s efforts to impose a carbon tariff in aid of its efforts to combat climate change; and public health restrictions on trade in medical supplies and the COVID-19 vaccine-all depend on a more flexible approach to international legal exceptions
Big Brother is Scanning: The Widespread Implementation of ALPR Technology in America’s Police Forces
Get PDFAutomatic License Plate Readers (ALPRs) are an increasingly popular tool in police departments across the United States. At its core, ALPR technology functions in a relatively simple manner. The technology has two major components: the actual scanners, which record license plates, and the databases which collect, compile, and analyze this information for officers to access at the click of a button. Although this technology first came to the United States in 1998 as a form of rudimentary border security, its purpose and capabilities have rapidly grown. Now, in 2022, ALPR has evolved into a frighteningly powerful piece of technology, potentially capable of creating a system of mass government surveillance and chilling various constitutional protections.
This Note acknowledges that this technology has bolstered the police’s ability to fight crime, but argues that its use must be limited through appropriate judicial action and regulatory measures to protect the privacy of all US citizens. This Note proposes the following reforms to address this issue: (1) a shift in the way the judiciary permits ALPR technology to be used by police; (2) new federal legislation to limit the aggregation and retention of this data; and (3) the creation of a federal agency to monitor ALPR databases. While some academics have proposed a new evidentiary standard within the judicial process and are creating federal legislation to better address the threats posed by ALPR, this Note’s solution specifically ensures that this technology does not infringe on the constitutional rights of US citizens and the information collected is properly stored
Putting Cano on ICE – A Path Forward for Border Searches of Electronic Devices
Get PDFAcross the country, circuit courts disagree over what level of suspicion, if any, is required for border officials to search electronic devices. This leaves law enforcement agencies in the lurch because they must craft nationwide policies that cover jurisdictions with differing rules. The Supreme Court should bring this quandary to an end by holding that no reasonable suspicion or warrant is required for border searches of electronic devices. Many scholars and litigants have called for a reasonable suspicion or warrant requirement in light of Supreme Court decisions like Riley and Carpenter that recognize the privacy concerns raised by searches of electronic devices. However, a reasonable suspicion or warrant requirement fails to account for the overwhelming government interests at the US border, including ensuring national security, controlling who and what enters the country, and combatting transnational crime.
This Note calls upon the Supreme Court to reject limitations on border searches and hold that no reasonable suspicion or warrant is required for searches of electronic devices at the border. This holding recognizes the government’s paramount interests and leaves room for Congress to legislate additional protections as technology evolves
The Public Right to Education
Get PDFPublic education is the most important function of state and local government and yet not a fundamental right or liberty. This Article engages one of constitutional law\u27s most intractable problems by introducing the public right to education as a doctrinal pathway to a constitutional right to education process in three steps. First, it identifies that the otherwise right-to-education foreclosing case, San Antonio Independent School District v. Rodriguez, only contemplated education as a fundamental right or liberty interest. Second, by identifying public education as a due process protected property interest, this Article presents a viable pathway for circumventing Rodriguez. Third, mindful of myriad judicial competency concerns and consistent with the Court\u27s recent call to reimagine a twenty-first century due process, it reintroduces the public right to understand how school children might appeal to substantive due process to protect their rights to state-created interests. This ambitious yet modest approach covers securing schoolchildren\u27s rights to both discrete education tangibles and the integral educational opportunity that the states have assumed the affirmative duty to provide. This approach also has promise for improving individual rights to quality public schooling
Stress Testing Governance
Get PDFIn their efforts to guard against the world\u27s greatest threats, administrative agencies and businesses have in recent years increasingly used stress tests. Stress tests simulate doomsday scenarios to ensure that the organization is prepared to respond. For example, agencies role-played a deadly pandemic spreading from China to the United States the year before COVID- 19, acted out responses to a hypothetical hurricane striking New Orleans months before Hurricane Katrina devastated the city, and required banks to model their ability to withstand a recession prior to the economic downturn of 2020. But too often these exercises have failed to significantly improve readiness for the subsequent crises. This Article shows that stress tests are used more widely than is commonly assumed, reaching well beyond financial regulation. It then argues that administrative stress tests should be seen as potentially powerful tools for administrative governance, but ones that suffer from significant shortcomings as currently deployed. Most notably, stress tests lack adequate transparency, oversight, and imagination. Also, they are too often voluntary for businesses and agencies whose performance failures could have great societal ramifications. By depriving stakeholders of crucial information about organizational readiness, these shortcomings weaken the nation\u27s ability to prevent and prepare for disasters. Preparing for disasters will only become more important as technologies transform everything from stock trading to elections and climate change creates more volatile weather. With improved design and wider deployment, stress tests have the potential to become a central tool for public and private accountability in an era of escalating societal risks
High-End Bargaining Problems
Get PDFMany important areas of the law place great confidence in the ability of contracting parties to bargain effectively. In this Article, I question the wisdom of a formalistic faith in bargaining by identifying flaws in the bargaining process at the high end of the market, where parties are sophisticated and have substantial resources to aid them in bargaining.
My analysis focuses on the private equity fund industry, which is widely regarded as one of the most elite contracting spaces in the market. Because of rigorous investor qualification laws and other distinctive features of private equity funds, this industry enjoys many advantages compared to most real- world contracting settings. A careful review, however, reveals issues. Drawing on proprietary survey data and dozens of conversations with industry participants, this Article offers an in-depth analysis of bargaining problems in private equity funds.
These bargaining problems raise a difficult question for scholars and policymakers: If optimal bargaining outcomes and processes are elusive in this high-end market and ongoing SEC intervention is needed, what can realistically be expected across the broader spectrum of real-world contracting settings? These findings provide a striking illustration of the fact that bargaining cannot simply be assumed to produce optimal outcomes in real- world environments. Acknowledging this reality has significant implications for securities law, the law of business organizations, and contract law
Policing, Masculinities, and Judicial Acknowledgment
Get PDFIn the 1980s, the Supreme Court held that courts must consider the “totality of the circumstances” when deciding the reasonableness of a police officer’s conduct in an excessive force suit. To this day, the precise meaning of “reasonableness” remains elusive. For years, courts around the country have struggled to articulate what police conduct should and—equally as saliently— should not be considered during reasonableness determinations. Thus far, the Supreme Court has been unwilling to substantively clarify its reasonableness doctrine. This lack of clarity has led to an untenable patchwork of differing legal frameworks throughout the United States.
This issue exists in a cultural milieu of exacerbated police tensions and intersects issues of race, class, and gender. This Note focuses on the latter, centering the discussion on how gender increases the potential for police violence. In doing so, it considers how the Supreme Court’s Fourth Amendment jurisprudence has historically turned a blind eye to some of the predominant social forces that shape police culture in America, thereby insulating dangerous forms of police conduct from judicial scrutiny. This Note attempts to wed policy considerations with legal reasoning and argues that the Supreme Court should broaden its reasonableness inquiry for two key reasons: first, to resolve the current circuit split, and second, to acknowledge—and dismantle—the problematic policing culture that its own jurisprudence helped shape