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Let\u27s Talk About Gender: Nonbinary Title VII Plaintiffs Post-Bostock
Get PDFIn Bostock v. Clayton County, the Supreme Court held that Title VII’s sex-discrimination prohibition applies to discrimination against gay and transgender employees. This decision, surprising from a conservative Court, has engendered a huge amount of commentary on both its substantive holding and its interpretive method. This Note addresses a single question arising from this discourse: After Bostock, how will courts address allegations of sex discrimination by plaintiffs whose gender identities exist outside of traditional sex and gender binaries? As this Note explores, some have argued that Bostock’s textualist logic precludes sex-discrimination claims by nonbinary plaintiffs. While such arguments fail to recognize the import of pre-Bostock Title VII jurisprudence, they are worth engaging. Given the history of narrow judicial interpretations of Title VII, the conservative leanings of the federal bench, and the controversial nature of gender-discrimination law, this Note argues that while Title VII protects employees of all gender identities, amending federal law to explicitly prohibit gender-identity discrimination remains a policy priority post-Bostock
Extending Democracy to Corporate Governance and Beyond
Get PDFThis article proposes a different rationale for corporate democracy, one that extends more broadly to all forms of employment. It is based on an equivalence, not an analogy. The equivalence is that subordination feels essentially the same to an individual whether a public or a private entity is carrying it out. As recognized in the public arena, it undermines people’s dignity and autonomy, and at least threatens—and often produces—actual oppression. Based on this equivalence, this article proposes a different argument for corporate democracy. Proponents of democracy in the public sphere believe that the citizens of a nation should control its government. For the same reason, it can be argued that those who work for a living should control the institutions for which they work. Thus, the norms of democracy, when translated into the economic realm, yield the principle that no person should work for their livelihood on terms established by another person. This can be called the principle of popular economic sovereignty.
The operational argument that can instantiate this assertion of equivalence between the state and the corporation is etiological. Both institutions, in their modern form, developed from Medieval corporativist thought. They are conceived as juridical persons, entities that are capable of independent action. As such, they have an equivalent capacity to dominate and oppress the individuals that they control. The way to provide these individuals with a sense of autonomy and protect them from oppression is to constitute them as a separate juridical entity that is authorized to control the state or the corporation, either directly or—in cases where the state or corporation is large—through chosen representatives
European Union Law as Foreign Law
Get PDFThe importance and significance of comparative sources to the development of Israeli jurisprudence is expressed in local legislation and rulings. The impact of foreign law on the development of Israeli law has been analyzed and vindicated in numerous studies in the local legal literature. These studies typically focus on the two most prominent legal systems—-common law (the Anglo-American system) and civil law (the Continental system). The historical reasons for this are clear, emanating from the fact that Israel’s legal system is based on these legal regimes and is amended in the spirit of changes made to them. Over the years, however, Israeli law has developed and has become a diverse mosaic which has appropriated doctrines and interpretations on legal issues drawn from various other legal traditions.
One of the most prominent legal systems to emerge in recent years is that of the European Union (EU), currently the largest democratic bloc in the world. Despite its relative novelty, EU law has greatly influenced the development of legal interpretation in Israel. The Article seeks to complete the portrait painted in the study by the research briefly introduced in these authors’ previous Article, The Image of European Union Law in Bilateral Relations, which laid the theoretical and historical foundations of the role played by comparative law in Israeli jurisprudence and outlined the development of Israel-EU relations over the years under discussion. In the Article, the portrait is completed through an integrated empirical and descriptive analysis of Israeli Supreme Court (ISC) rulings, based on a database of all rulings referencing EU law sources in any manner during the years 1948–2016.
The Article’s findings indicate a gradual yet continual diffusion of legal norms emanating from EU law into ISC rulings, as the status and resonance of EU law among Supreme Court justices in Israel demonstrate. The referencing of sources drawn from EU law, as evidenced in the findings, has been made, inter alia, in several principal and precedent-setting rulings which carry far-reaching implications. The EU sources cited in these rulings provide the foundations for interpretive, normative, and theoretical inspiration, and at times serve as a base against which local law is either reinforced or challenged. The Article’s findings highlight a perpetual positive trajectory in the number of ISC rulings citing EU legal sources. In addition, they also point to a steep qualitative rise in the size and scope of these citations during the period examined. These findings challenge the perceived absence of EU law from the discussion of comparative law and underscore the role played by EU law in the normative development of the legal systems of third countries which are not members of the EU. The Article’s results fortify the claim that a theoretical and interpretative approximation of Israeli jurisprudence to the theories and norms found in the EU legal system is underway and that this is part of a larger process of convergence between Israel and the EU in all spheres of life
Adapting Indian Copyright: Bollywood, Indian Cultural Adaptation, and the Path to Economic Development
Get PDFBollywood and the Indian film industry have enjoyed enormous success, being among the largest movie producers in the world. Yet, despite the bright image of Indian cinema producing over a thousand movies a year and selling billions of tickets, the industry has faced controversy over the practice of copying expression, sometimes practically scene for scene, from US and other international films and adapting them into a version that reflects Indian social and cinematic customs and mores (“Indian cultural adaptation”). A long-standing practice, Indian cultural adaptation in Bollywood has only attracted the attention of Hollywood studios in the past twenty years, but under international, US, and Indian copyright law, the legality of the practice remains in an unsettled gray area.
Current literature on Indian cultural adaptation remains sparse and focuses on greater enforcement by India or Hollywood studios, at least partially condemning the practice. This Article instead argues that the practice of Indian cultural adaptation at least partially aligns with other limitations on the scope of copyright, including the expression-idea distinction, fair use, and the scène à faire doctrine. Drawing on a growing trend in law and economic development literature to craft property rights on a country-by-country basis, this Article also argues that explicit legalization of limited Indian cultural adaptation would benefit India culturally and economically, ultimately assisting the Indian entertainment industry with obtaining foreign investment on more favorable terms and further develop its burgeoning talent
Labor Organization in Ride-Sharing—Unionization or Cartelization?
Get PDFThe sharing economy brings together the constituent parts of a business enterprise into a structure that, on its surface, resembles a business firm, but in crucial ways is nothing like the traditional firm. This includes the ownership of the primary capital assets used in the business, as well as one of the most fundamental features of a firm—the relationship with its labor force. Sharing economy workers are formally contractors, running small businesses as sole entrepreneurs, with the effect that they are excluded from many of the protections made available to workers across the economy. The result is a seeming disparity across the market, with consumers realizing benefits of choice and price that did not exist before and platforms possibly poised to turn profits as the hubs of massive enterprises with few of the burdens of a dependent workforce.
This Article explains how existing antitrust law would not allow labor organization by sharing economy workers. Even under a possible Rule of Reason approach, the worker protection goals that underlie collective bargaining are not cognizable efficiency justifications for collective bargaining. However, this Article also shows that existing law ignores the well-developed economic theory that supports labor organization as a response to monopsony, and how that theory supports the idea of labor organization as having pro-consumer effects.
This Article identifies two primary market structures—the fallow-assets model and the locked-in model—and shows how in the first structure the effect of organization would be to increase output in the labor market, leading to increased output and lower price in the consumer market, while in the second structure the effect of organization is likely to lead to harm in the consumer market. Outcome ambiguity and the novel enterprise structure militate for a Rule of Reason treatment of labor organization in ride-sharing. In operation, this produces the uncomfortable result that the workers least in need of labor protections are most likely to succeed in avoiding liability, while those most in need of protections are most likely to be subjected to damages and injunctions. As a result, non-antitrust labor protections remain essential
Regulation and the Geography of Inequality
Get PDFWe live in an era of widening geographic inequality. Around the country, the spread between economically and culturally thriving places and those that are struggling has been increasing. Superstar cities like New York, San Francisco, Boston, and Atlanta continue to attract talent and grow, while the economies of other cities and rural areas are left behind. Troublingly, escalating geographic inequality in the United States has arrived hand in hand with serious economic, social, and political problems. Areas that are left behind have not only failed to keep up with their thriving peers; in many ways, they have stagnated and seen opportunities evaporate. At the same time, superstar cities are running up against extreme housing affordability problems, rendering middle- class life all but unsustainable. To make matters worse, the widening gulf between dynamic and stagnant places increasingly feeds into a democratic crisis of unrepresentative government at the federal level. The dominant explanations for widening geographic inequality focus largely on inexorable economic trends. Forces like agglomeration effects and globalization have reshaped the economy, benefitting some areas and harming others. We think these explanations leave out a crucial factor: the effects of specific regulatory choices on economic geography. The Progressive Era and New Deal regulatory order in the United States promoted geographic dispersion of economic activity. The unraveling of this regulatory order around 1980 coincided with the reversal in geographic convergence and the beginning of an era of growing divergence. More specifically, regulatory policies in the areas of transportation, communications, trade, and antitrust helped construct an era of geographic convergence in the mid-twentieth century, and deregulation in those same areas contributed to the rise of geographic inequality over the last generation. Though the COVID-19 pandemic has produced unprecedented awareness of and interest in remote work- raising the possibility of greater economic dispersion-the extent to which this potential can be realized will likely also depend upon regulatory choices. To combat geographic inequality and its attendant downsides, we make the case for reincorporating geographic factors into federal regulatory policymaking in transportation, communications, trade, antitrust, and other domains
Make Hay While the Sun Shines: Private Equity and the False Claims Act
Get PDFFor years, the federal government has used the False Claims Act to police fraud in the healthcare industry. Every year, the Department of Justice recovers billions of dollars from healthcare companies for their False Claims Act violations, both penalizing wrongdoers and providing incentives for whistleblowers to come forward. Over the past decade, however, private equity activity within the healthcare industry has increased significantly, presenting questions as to how the False Claims Act applies when a private equity firm’s portfolio company is accused of wrongdoing. This Note analyzes the ambiguity in how different courts have previously applied the False Claims Act to different corporate forms—focusing on the level of involvement required of a parent organization—to determine how the Act should apply to private equity firms going forward, concluding that any direct involvement by a private equity firm in fraud committed by its portfolio company should trigger False Claims Act liability for the private equity firm
The Shadows of Litigation Finance
Get PDFLitigation finance is quickly becoming a centerpiece of our legal system. Once a dispute arises, litigants may seek money from third-party financiers to pay their legal bills or monetize their claims, and in turn those financiers receive a portion of any case proceeds. Yet policymakers are struggling with how to evaluate and regulate litigation finance. There are two problems. The first is an awareness problem. Some commentators consider litigation finance “likely the most important development in civil justice of our time,” but others have hardly heard of it. As a result, many policymakers do not quite understand what litigation finance is, how it works, and what is actually new about it. The second problem is analytical. There is no scholarly framework policymakers can rely on to evaluate whether litigation finance is actually good for the legal system and society. Moreover, the existing scholarship has overlooked important welfare effects, risking inefficient and suboptimal regulatory decisionmaking.
This Article addresses both problems. First, it articulates what exactly litigation finance is, who uses it, why they use it, and—most importantly—what is (and is not) new about this form of financing. Second, it provides a novel framework for analyzing the welfare implications of litigation finance. Existing scholarship focuses narrowly on the effects of litigation finance on behavior after a claim accrues and a litigant seeks funding. This Article’s framework provides new insights by explaining how litigation finance also significantly affects parties’ behavior before a legal dispute ever arises. Once these “pre-claim” effects of litigation finance are understood alongside the “post-claim” effects that scholars have previously identified, it becomes clear that policymakers should encourage rather than obstruct litigation finance
Presidential Control of Elections
Get PDFIn recent decades, presidents of both political parties have asserted increasingly aggressive forms of influence over the administrative state. During this same period, Congress has expanded the role that the federal government plays in election administration. The convergence of these two trends leads to a troubling but underexamined phenomenon: presidential control of elections. Relying on their official powers, presidents have the ability to affect the rules that govern elections, including elections meant to check and legitimize presidential powers in the first place. This self-serving arrangement heightens the risk of harms from political entrenchment and subordination of expertise. These harms, in turn, threaten to compromise election outcomes. By extension, they also threaten the electoral connection purportedly underlying the administrative state and, therefore, the legitimacy of the work of the modern executive branch.
This Article identifies, defines, and examines this phenomenon— presidential control of elections—and explores its broader implications. It demonstrates that, across the executive branch, this phenomenon manifests differently, and sometimes counterintuitively, in ways that tend to track how Congress has structured the relevant grant of power. Three forms dominate, with presidents influencing election administration primarily through priority setting (for grants of power running through executive agencies), promotion of gridlock (for grants of power running through independent agencies), and idiosyncratic control (for grants of power running directly to the president). This analysis reveals that congressional efforts at insulation at times can backfire, with presidents able to exercise particularly problematic forms of control over agencies that Congress designed in blunt ways to resist presidential influence. To that end, this Article proposes that Congress and the courts avoid trying to eliminate or otherwise indiscriminately curb presidential control of elections— a quixotic endeavor that would give rise to its own constitutional challenges and normative harms. Instead, the legislative and judicial branches should identify specific areas where the president’s control over election administration lacks an effective check and seek to empower other political actors in those spaces
Employment Practices Liability Insurance and Ex Post Moral Hazard
Get PDFMany businesses purchase Employment Practices Liability Insurance (EPLI), a form of insurance that protects them from claims of discrimination, harassment, retaliation, and wrongful termination. But critics of EPLI argue that allowing insurance coverage for employment liability detracts from employment law\u27s goal of deterrence and from notions of justice. We assess the validity of these criticisms by examining the nature of employment law claims and by reviewing characteristics of the current EPLI market. We find that past critiques miss the mark in diagnosing EPLI\u27s major problem.
The EPLI market, for the most part, functions in a way that poses little to no threat to the goals of employment law. However, one specific characteristic of EPLI stands out as particularly concerning. Our review of market sources indicates that EPLI contracts, as currently written, often do not exclude intentional actions of any sort. As such, EPLI policies generally cover employment law claims regardless of whether upper management (i.e., those responsible for decision making on behalf of the business) played a role in the prohibited employment action, either from the outset or as part of a cover-up.
This current EPLI market norm explains why insurers agreed to pay out The Weinstein Company\u27s (TWC) and codefendants\u27 liability for Harvey Weinstein\u27s pervasive sexual harassment, even though Weinstein\u27s behavior was widely known within TWC. We argue that this outcome is troubling from the standpoint of ex post moral hazard. Insuring liability for this type of behavior incentivizes a business\u27s decision makers to attempt to cover up instances of discrimination, harassment, retaliation, and wrongful termination, rather than addressing them head-on.
Despite this significant concern, we argue that the EPLI market can enhance employment law\u27s goals of deterring bad behavior and compensating victims but only if properly structured. Specifically, we suggest that the extent of a business\u27s fault, as evidenced through upper-management involvement, should correlate with their direct payment of damages. Under such a system, a business like TWC in which upper management knew of the unlawful activities would be held to a higher standard of accountability than, for instance, a business that immediately addresses allegations of a hostile work environment created by a mid-level employee.
We propose regulating EPLI contracts by mandating that-in cases of upper-management bad faith-either EPLI insurers have the right to pursue subrogation against the business or the business must pay a minimum proportional risk sharing (i.e., coinsurance) rate. Concurrently, legislatures could grant the EEOC (and corresponding state and local agencies) the power to pursue uninsurable fines in the most egregious cases. Such a structure would hold businesses accountable in situations when upper management plays a role in the commission or cover-up of a prohibited employment action while still allowing the EPLI market to reduce risk to businesses, disseminate best practices, and help compensate victims