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Gatsby and Tort
Get PDFThe Great Gatsby is filled with potential tort claims, from drunken or reckless driving to assault and battery. In a pivotal passage Nick Carraway, the narrator of The Great Gatsby, judges Daisy and Tom as “careless people,” who “destroy creatures and leave others to clean up the mess.” The carelessness, negligence, and recklessness portrayed by Fitzgerald’s characters shows an absence of due care, long regarded as the foundation for tort law. Although there are torts, tortfeasors, and tortious behavior aplenty in The Great Gatsby, the novel is void of even a mention of tort law. Why?
The first part of this piece discusses tort law during Gatsby’s decade – the beginning of the “era of automobility” -- and explains tort law’s absence from the novel: Tort law is absent from The Great Gatsby, in part, because tort law itself was dysfunctional and could not provide meaningful access to the legal system. Tort victims of automobile accidents were largely unable to access legal avenues, and recovery was hindered by a host of rules, prominently the contributory negligence system. The piece then briefly describes a reform movement, led by progressive legal realists, to replace tort recovery for automobile accidents with a no-fault compensation scheme. One consequence of that movement, I suggest, was the loss of tort law’s traditional “moral center,” the idea of the law of torts as a “law of wrongs.” The second part of the piece then discusses the costs of this change, politically and conceptually, and briefly defends traditional “wrongs” and “justice-based” tort law against compensation-minded reforms. I conclude that while the moralistic tort law of Gatsby’s era expressed plenty of blame for tortfeasors, it failed to hold them accountable, thus contributing to the death of our understanding of the law of tort as a law of wrongs – and only partly and fitfully replaced by compensation schemes
Imagining Global Health with Justice: In Defense of the Right to Health
Get PDFThe singular message in Global Health Law is that we must strive to achieve global health with justice—improved population health, with a fairer distribution of benefits of good health. Global health entails ensuring the conditions of good health—public health, universal health coverage, and the social determinants of health—while justice requires closing today’s vast domestic and global health inequities. These conditions for good health should be incorporated into public policy, supplemented by specific actions to overcome barriers to equity.
A new global health treaty grounded in the right to health and aimed at health equity—a Framework Convention on Global Health (FCGH)—stands out for its possibilities in helping to achieve global health with justice. This far-reaching legal instrument would establish minimum standards for universal health coverage and public health measures, with an accompanying national and international financing framework, require a constant focus on health equity, promote Health in All Policies and global governance for health, and advance the principles of good governance, including accountability. While achieving an FCGH is certainly ambitious, it is a struggle worth the efforts of us all. The treaty’s basis in the right to health, which has been agreed to by all governments has powerful potential to form the foundation of global governance for health.
From interpretations of UN treaty bodies to judgments of national courts, the right to health is now sufficiently articulated to serve this role, with the individual’s right to health best understood as a function of a social, political, and economic environment aimed at equity. However great the political challenge of securing state agreement to the FCGH, it is possible. States have joined other treaties with significant resource requirements and limitations on their sovereignty without significant reciprocal benefits from other states, while important state interests would benefit from the FCGH. And from integrating the FCGH into the existing human rights system to creative forms of compliance and enforcement and strengthened domestic legal and political accountability mechanisms, the treaty stands to improve right to health compliance. The potential for the FCGH to bring the right to health nearer universal reality calls for us to embark on the journey towards securing this global treaty
Red-Teaming NLW: A Top Ten List of Criticisms About Non-Lethal Weapons
Get PDFCritics of non-lethal weapons (NL W) have asserted numerous complaints about the concepts, the Department of Defense research and development efforts, and the pace of innovation in the field. These critiques challenge the cost of the programs, their consistency with international law, the adverse public reaction to some of the devices, and the dangers of proliferation, among other points. This article summarizes the various assessments, in form of a top ten list of criticisms, and evaluates their weight. The author concludes that some of these points of objection have merit, but overall, the NLW enterprise is worthy of continuation and even expansion, to meet more fully its ambitious goals
Good Faith Discrimination
Get PDFThe Supreme Court\u27s current doctrinal rules governing racial discrimination and affirmative action are unsatisfying. They often seem artificial, internally inconsistent, and even conceptually incoherent. Despite a long and continuing history of racial discrimination in the United States, many of the problems with the Supreme Court\u27s racial jurisprudence stem from the Court\u27s willingness to view the current distribution of societal resources as establishing a colorblind, race-neutral baseline that can be used to make equality determinations. As a result, the current rules are as likely to facilitate racial discrimination as to prevent it, or to remedy the lingering effects of past discrimination
Comment: The Doctrine of Chances, Brides of the Bath and a Reply to Sean Sullivan
Get PDFThe ‘Doctrine of Chances’ is a doctrine of probability that purports to solve an apparent logical conundrum or contradiction in the law of Evidence.
It is the author\u27s thesis in this article that the doctrine of chances—in any acceptable logical form including that described by Mr. Sullivan—does properly describe when this kind of ‘other wrongs’ evidence is relevant, and how probative it is, but that relevance and probative value where this kind of proof is offered does depend on propensity reasoning even under these theories even in the cases where they say it does not. He is not simply arguing that the jury will indulge propensity reasoning even though they are not supposed to and are instructed not to. Rather the author is arguing that propensity reasoning is a fundamentally necessary step in the inferential process they are told to perform.
However, it is also his contention that it is not necessarily the type of propensity that the rule against propensity is meant to exclude. If properly understood, the rule and its exceptions will often admit the evidence when it is strong; will screen out only extremely prejudicial evidence or evidence of low probative value; and will do as satisfactory a job as is realistically possible in a large and diverse court system administered by probabilistically unsophisticated lawyers, judges and juries. In fact, it will produce results quite similar to what a more technically correct probabilistic approach, including Mr. Sullivan’s, would produce, particularly if a second step is applied after the relevance determination to screen out prejudicial evidence
Middle East Respiratory Syndrome: A Global Health Challenge
Get PDFBeginning in May 2015, Middle-East respiratory syndrome (MERS) experienced its first publicly reported “super-spreading” event in South Korea. By mid-June, more than 120 cases and 11 deaths in South Korea had been linked to a businessman returning from travel to Bahrain, United Arab Emirates, the Kingdom of Saudi Arabia and Qatar. Globally more than 1200 had been infected of whom more than 450 died—a high fatality rate of 37%.
What are the most effective legal, social, and public health responses to MERS and other emerging diseases? First, the World Health Organization’s International Health Regulations (IHR) did not effectively guide the MERS outbreak. The IHR, the governing framework for global health threats, should be amended to allow for graduated alert levels and building health system core capabilities.
Second, MERS, like all emerging health threats requires a strategic and measured public health response, including government transparency, protection of health workers and robust infection prevention and control, humane isolation and quarantine measures, travel restrictions that adhere to WHO guidance, and school closures only when strictly necessary.
Third, international rules and governance must effectively address the contentious history of “ownership” of MERS-CoV. There are glaring gaps in the international system for equitable virus sharing and assertion of intellectual property rights over biological materials and genetic viral sequences.
Finally, we propose the development of robust health systems throughout the world to contain the spread of MERS-CoV—as well as the next infectious disease threat
Sexual Assaults Among University Students: Prevention, Support, and Justice
Get PDFSexual assault is common among college-aged women (18 to 25 years), with 1 in 5 reporting having experienced these crimes during their college years. Acute and long-term consequences of sexual assault may include physical trauma, sexually transmitted infections, posttraumatic stress disorder, depression, and substance abuse. Survivors have the option of reporting assaults to the university or to the police, but the goals of these 2 systems—and women’s experiences with them—can be quite different. The criminal justice system’s principal aim is to adjudicate guilt, but the university has the broader purpose of fostering a safe learning environment.
This article explores how university administrators can help prevent sexual assaults and, if necessary, fairly adjudicate claims. The critical points of intervention include nurturing a respectful environment; encouraging reporting; ensuring fair and rigorous investigations; implementing appropriate sanctions for inappropriate behavior; and reintegrating survivors back into the academic community. Importantly, coordination and cooperation between the university and criminal justice systems will improve experiences for survivors of sexual assault
From Hierarchies to Markets: FedEx Drivers and the Work contract as Institutional Marker
Get PDFJudges are often called upon today to determine whether certain workers are “employees” or “independent contractors.” The distinction is important, because only employees have rights under most statutes regulating work, including wage and hour, anti-discrimination, and collective bargaining law. Too often judges exclude workers from statutory protection who resemble what legal scholars have described as typical, industrial employees — long-term, full-time workers with set wages and routinized responsibilities within a large firm. To explain how courts reach these counterintuitive results, the article examines recent federal decisions finding that FedEx delivery drivers are independent contractors rather than employees. It argues that the problem is embedded within the employment contract itself, in the law’s attempt to construe the legal relations of master and servant as a contract. The contemporary employment contract is product of a 19th century incorporation of master-servant authority into contracts for labor services. In the face of institutional disruption, the contradiction within employment between contractual equality and servitude tends to surface in the form of two doctrinal ambiguities. Both make the dominant standard for employment status irresolvable by merging contractual formation and performance. First, the attempt to fit master-servant authority in the framework of contract creates an ambiguity between the activities of bargaining over the work and carrying out the work, or between contracting and producing. Second, it makes ambiguous the relationship between a written agreement and contractual duties. The way in which FedEx organized the drivers’ work manipulated these ambiguities, which enabled the courts to maintain that features of the work that ordinarily, and under the governing legal tests, would be evidence of employment were here consistent with, or even evidence of, independent contracting. In fact, the courts transform some of the same vulnerabilities that place the drivers within the policy concerns of collective bargaining and wage and hour law into evidence of their autonomy.
The attempt to encase master-servant relations in contract also destabilizes distinctions between firms and markets. The ambiguity in employment between contracting and producing exposes a tension within major economic theories of the firm: employment is the legal rationale for a firm’s centralized control over indirect, hierarchical, and multilateral relations in production; as a contract, however, employment is a direct and bilateral relationship between equal parties in a market. The FedEx decisions marshal this tension to redefine a firm, as conceptualized by major theories of the firm, as a market. Multilateral relations among drivers as they work under FedEx’s direction appear as bilateral contracts between drivers in a decentralized market. The courts conflate the impersonality of bureaucracy — in which work is embedded in sophisticated technology and a supervisory hierarchy — with the impersonality of the market. The drivers’ very fungibility as low-skilled workers performing standardized routines becomes evidence of their entrepreneurial opportunity. The article hypothesizes that the invisibility of logistics and communications technology, relative to the heavy machinery of industrial manufacturing, helped the courts to submerge the FedEx bureaucracy beneath a nexus of contracts. It critiques the decisions for rejecting theories of the firm that ground the legitimacy of the corporation in the efficient production of goods and services. The article concludes with a thought experiment showing how, using the arguments in the FedEx decisions, one could reinterpret assembly line employment as independent contracting
Equality, Centralization, Community, and Governance in Contemporary Education Law
Get PDFA response to Robert Garda, Searching for Equity Amid a System of Schools: The View from New Orleans, 42 FORDHAM URB. L.J. 613 (2015)
Nuclear Arms Control by a Pen and a Phone: Effectuating the Comprehensive Test Ban Treaty Without Ratification
Get PDFThis Article examines three crucial national security problems concerning the testing and proliferation of nuclear weapons, and offers three novel solutions. The three urgent problems are: (1) the fact that the Comprehensive Nuclear Test Ban Treaty (CTBT), the most important multilateral nuclear arms control agreement of the past forty years, may never enter into force; (2) the fact that without CTBT, the global non-Proliferation regime is in trouble, too, as the fragile consensus underpinning the world\u27s efforts to restrict the spread of nuclear weapons threatens to unravel; and (3) the fact that the United States is peculiarly disabled, due to persistent internal political discord, from exercising the leadership necessary to address these difficulties.
In that dissonant environment, President Barack Obama has heralded his willingness to proceed with his progressive agenda with a pen and a phone --if Congress is irreconcilably deadlocked, he will use his pen to sign executive orders and other agency actions and his telephone to convene meetings of concerned stakeholders. The president has already proceeded with those tactics in numerous areas of domestic policy. Thus, this Article proposes cognate strategies in the international realm to rescue the CTBT and the global non-p roliferation order. The three innovative options presented here are: (1) the adoption of a legally binding resolution by the United Nations Security Council to declare nuclear weapons testing a threat to the peace \u27 (2) the creation of a new norm of customay international law prohibiting such testing; and (3) the adoption by relevant states of legally binding unilateral undertakings to refrain from testing.
Each of these options would promote U.S. national security and global stability by legally entrenching the current voluntary moratoria against nuclear testing. Each has precedents in international arms control practice, although none has ever been exercised regarding issues of this consequence. Each is, admittedly, inferior to prompt effectuation of the CTBT via a Senate vote of advice and consent, and would institute only a portion of what would be accomplished via formal entry into force of that treaty. But each option can be effectuated by the executive branch unilaterally, not being hostage to legislative branch stasis; if current political circumstances preclude, for the foreseeable future, the favored ratification option, the United States and other key players should seriously consider these alternative mechanisms to pursue preservation of the CTBT and the non-proliferation regime