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The Changing Role of the American Prosecutor
No full textThe following is a November 2019 presentation to the Louisiana District Attorneys Association, Fall Meeting of Elected District Attorneys ( DA\u27). The invited presentation was part of an agenda that included remarks from the Governor of Louisiana and the Chief Justice of the Louisiana Supreme Court. The opinions expressed are solely those of the author. These remarks have been edited for clarity and brevity. Some discussion specific to Louisiana, as well as the speaker introduction, and exchanges with the audience during and after the talk are excluded. A short postscript follows the remarks
Federal COVID-19 Response Unlawfully Blocks State Public Health Efforts
Get PDFThe federal government recently used preemption unlawfully to prevent state public health efforts to protect vulnerable people from COVID-19.
As 1,000 current and former CDC epidemiologists noted in an open letter, the federal government has failed to use legal powers it does have to manage the crisis, leaving states to “invent their own differing systems” to manage COVID-19. We add that the federal government is now asserting emergency powers it does not have to disable state public health responses.
Early this month, Nevada officials halted the use of two rapid coronavirus tests that produced high false-positive rates when used for screening vulnerable people in Nevada’s nursing homes, assisted-living, long-term care, and other congregate facilities. More than half the positive test results were false.
On October 8, the U.S. Department of Health and Human Services (HHS) sent a letter threatening that the Nevada officials’ action was “inconsistent with and preempted by federal law and, as such, must cease immediately or appropriate action will be taken against those involved.” Nevada yielded to this threat and, on October 9, removed its directive to stop using the tests
Chancery Court Declines to Apply Corwin at Pleading Stage to Cleanse Breach of Fiduciary Duty Claim due to Material Non-Disclosures
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Chancery Court - For the First Time - Releases Buyer from Obligation to Close due to Target MAE
Get PDFThe Indian Securities Fraud Class Action: Is Class Arbitration the Answer?
Get PDFIn 2013, India enacted one of the most robust private enforcement regimes for securities fraud violations in the world. Unlike in most other countries, Indian shareholders can now initiate securities fraud lawsuits on their own, represent all other defrauded shareholders unless those shareholders affirmatively opt out, and collect money damages for the entire class. The only thing missing is a better financing mechanism: unlike the United States, Canada, and Australia, India does not permit contingency fees, so class action lawyers cannot front the costs of litigation in exchange for collecting a percentage of what they recover. On the other hand, the 2013 law enacted a public financing regime for securities fraud class actions and it is possible third-party financing will be permitted; these mechanisms may make up some of the loss in effectiveness caused by the lack of contingency fees. It is still too early to tell.
Yet, commentators are very pessimistic that the Indian securities fraud class action will do much good because the Indian court system is glacially slow. For example, it takes over six years on average to resolve some civil appeals.
The solution to this problem in the 2013 law was to channel the securities fraud class action to a special tribunal, the National Company Litigation Tribunal ( NCLT ). Yet, this type of solution has been tried before in India: special tribunals tend to quickly take on the negative characteristics of the general courts. This may be why very few securities fraud lawsuits have been filed since the 2013 law was enacted.
We propose a different solution to the problem of the Indian court system: class arbitration. As we explain, although class arbitration is not perfect, it may better facilitate robust private enforcement than the Indian court system
Anticipating Accommodation
Get PDFIn theory, a reasonable accommodation mandate can remedy worker marginalization by requiring employers to make small adjustments in the workplace that have big payoffs for employees. But in reality, a reasonable accommodation mandate may be an empty promise. Reasonable accommodation is the hallmark feature of the Americans with Disabilities Act ( ADA ), yet decades of empirical studies indicate that wage and employment outcomes of disabled individuals have not improved--and may have even worsened--since the Act\u27s passage. Economists have been quick to blame the reasonable accommodation mandate for the ADA\u27s failure, but they have lacked sufficient data to discern both what aspect of the mandate is problematic and how to improve it.
This Article is the first to supply the missing data, using two experimental vignette studies that test decision makers\u27 willingness to accommodate job candidates and existing employees. The studies find that decision makers are more reluctant to accommodate job candidates than existing employees, and cost concerns drive much of this reluctance. Based on these findings, the Article argues that much of the ADA\u27s ineffectiveness stems from the ambiguity it creates with respect to the reasonable accommodations disabled workers may require. Employers have little information about job candidates, making it difficult to estimate the costs of accommodating a candidate with any accuracy; accommodating an existing employee is inherently less ambiguous because employers have prior experience with that worker. As a result, employers exhibit far more aversion towards accommodating disabled job candidates than disabled existing employees.
Because the current structure of the ADA only increases this ambiguity, particularly at the hiring stage, the Article proposes a twofold reform that promotes clarity in employers\u27 obligations to accommodate: cost caps to limit what an employer must spend to accommodate a given employee and the extension of governmental disability benefits to cover accommodation costs that exceed those caps. These alterations to the ADA will help reasonable accommodation achieve its theoretical promise, not only for workers with disabilities, but also for others disadvantaged by traditionally inflexible working environments, to whom the reasonable accommodation model may one day be extended
Returning Results in the Genomic Era: Initial Experiences of the eMERGE Network
Get PDFA goal of the 3rd phase of the Electronic Medical Records and Genomics (eMERGE3) Network was to examine the return of results (RoR) of actionable variants in more than 100 genes to consenting participants and their healthcare providers. Each of the 10 eMERGE sites developed plans for three essential elements of the RoR process: Disclosure to the participant, notification of the health care provider, and integration of results into the electronic health record (EHR). Procedures and protocols around these three elements were adapted as appropriate to individual site requirements and limitations. Detailed information about the RoR procedures at each site was obtained through structured telephone interviews and follow-up surveys with the clinical investigator leading or participating in the RoR process at each eMERGE3 institution. Because RoR processes at each of the 10 sites allowed for taking into account differences in population, disease focus and institutional requirements, significant heterogeneity of process was identified, including variability in the order in which patients and clinicians were notified and results were placed in the EHR. This heterogeneity in the process flow for eMERGE3 RoR reflects the “real world” of genomic medicine in which RoR procedures must be shaped by the needs of the patients and institutional environments
Wicked Problems, Foolish Decisions: Promoting Sustainability through Urban Governance in a Complex World Symposium: Governing Wicked Problems
Get PDFWhy do wicked problems often give birth to bad policy choices? Put another way, why do people—in the face of complex social challenges—make misdiagnoses, ineffective decisions, or no decisions at all? Typical answers point to a plethora of suspects: impatience, myopia, political stalemate, narrow-mindedness, fear and risk aversion, hubris, greed, rational self-interest, ignorance, reliance on emotionally appealing but misleading anecdotal stories, misuse of evidence, and misunderstanding of uncertainty.
Amid these divergent explanations, two classes emerge: one lies in the shortcomings and mistakes of the problem solvers, and the other lies in the nature of the problem itself. One stance is to fault the ostensible problem solvers: people are not always rational, fair, patient, thoughtful, or deliberative, but instead are myopic, selfish, greedy, power hungry, or out for revenge (among other motivations).
The second stance is to point to the nature of the problem. This is the focus of this Article. In particular, we examine how the dynamics of wicked problems undermine traditional problem-solving efforts. This is not to absolve the problem solvers of responsibility for poor policy choices. It is the responsibility of policymakers to diagnose the distinctive challenges and needs of wicked problems and act accordingly. As urban planning scholars, we focus on entrenched urban problems. This focus is not accidental. Horst Rittel (an architect) and Melvin Webber (a planning theorist and transportation planner) developed the idea of “wicked problems” at the University of California, Berkeley’s College of Environmental Design in the early 1970s—an era when the optimism of solving complex social issues through technical, scientific solutions was colliding hard with the failure of such efforts to conclusively resolve urban poverty, inequality, deindustrialization, racism, white flight, and the violence of the “Urban Crisis.”
In this Article, we build on previous researchto demonstrate how complexity thinking can engage urban challenges at three levels: (1) describing “complexity” as a symptom of urban systems; (2) analyzing the dynamics of complex urban systems; and ultimately (3) intervening through appropriate planning strategies that account for complexity. We employ this thinking to engage the politics of sustainability at the same three levels, illustrating this at two geographic scales: the neighborhood(specifically, the challenge of ecogentrification) and the megaregion (and the resulting regional externalities and trade-offs). These scales involve actors, conflicts, and specializations within planning. Yet both represent new, hybrid patterns of urbanization that produce intractable problems of environmental unsustainability and social-spatial inequality—two core planning priorities that too often collide. Both situations also generate novel social policy challenges that conventional planning, thinking, and governance tools are ill-equipped to address. These challenges instead call for interdepartmental or intergovernmental cooperation