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The Value of a Statistical Life: From Skin in the Game to Vision Zero
No full textThis essay discusses justice issues surrounding occupational safety and health and assesses the ethical legitimacy—the justice—of regulatory cost benefit analysis when the costs in question involve the risks and realization of workplace injury and fatalities. The current “value of a statistical life” for legal-regulatory purposes is 13.1 million dollars. While economists are careful to say that this figure does not “really” represent an attempt to value any particular life, the purpose of even calculating the number is to provide an “aggregated” statistical justification for saying “no” to rules requiring safer work. This seems acceptable until you, or someone you love, is a person at significant risk of being killed. One of the earliest moral and religious challenges, central to constructing modern employment law, was how to deal with workplace harm. Scholars have shown that the perceived inability of tort law to remedy workplace injury and fatality led to a veritable remaking of American law—through establishment of workers’ compensation—that was, in effect, the prelude to the administrative state, and therefore effectively of all employment law.
The moral-ethical dilemma—of work related injury and death—remains a central problem of workplace law. The AFL-CIO estimates that in 2022—the most recent year for which data was available as of the writing of this essay—5,486 employees were killed on the job in the United States; and 120,000 workers died from occupational diseases. During a time of modern, putatively-safe working conditions, these statistics seem almost incredible. At first blush, moral policymaking suggests that the societal reaction to death and injury at work should simply be to stop killing workers. But requiring safer workplaces costs “money.” And the moral question is: how much as a society are we willing to spend to prevent death in the workplace? “Cost-benefit considerations” are inherently moral. One who—because of racial or class positioning in a society, for example—is not likely to be harmed by an activity, may have a great deal of difficulty accurately assessing the moral significance of a risk of harm for others arising from the activity; or in determining whether a certain quantity of risk should be assumed by workers in the broader social interest.
Regulatory “weighing” is the province of economists, not that of workers who are actually exposed to workplace risks of harm and death. Those who argue that strong emotional responses to “fearsome risks” are irrational because of the risks’ putatively low probabilities of leading to harm are typically—perhaps predictably—not exposed to such risks and may suffer from an upper class “anti-safety bias.” It will always be possible to articulate the costs to employers of making workplaces safer, and the benefits to employers of not having to make workplaces safer. Assessment of cost on the worker’s side of the ledger is much more difficult to quantify because it involves the quasi-mystical—and not dollar expressible—question of the worth of life. And the ethical and democratic problem posed is whether the persons asking such questions have sufficient “skin in the game” to be asking the questions or evaluating the answers. The essay reflects on the EU’s “Vision Zero” goal of killing no one in the workplace. It is one thing to admit that it is presently impossible to avoid killing workers on the job. It is another thing to insist that the national goal should be killing no workers at work. Arguing for such insistence, the essay concludes by observing that employers are in fact capable of being much safer than they are
Distance Learning: New Tech, Old Problems
No full textIn the 1800s, American academic leaders vehemently opposed distance education, which is when the student and teacher are separated by distance, arguing that it eliminated the social aspects of college life and undermined the prestigious status of professors. Fast forward to the present, and a similar debate is raging in legal academia, this time focused on online legal education. Critics contend that online education devalues face-to-face classrooms and undermines the core of effective teaching and learning—in-person interaction. However, a paradigm shift is on the horizon, marked by the American Bar Association\u27s recent proposals to liberalize access to legal education through expanded online options for J.D. students.
This Article explores the historical roots of distance education, specifically learning by mail (also known as correspondence education), to draw parallels between the past and present. It examines key figures and events that shaped correspondence education, revealing valuable lessons for developing online legal education. The Article posits that online legal education, like correspondence education, can 1) provide greater access to legal education to a wider range of people, 2) place the individual student at the heart of the learning process, and 3) help legal educators leverage technology to advance their teaching and enhance student learning.
The Article argues that understanding the origins of distance education can help build robust conceptual frameworks for effective online legal teaching, ultimately fostering a legal profession that is not only modernized but also capable of delivering broader access to justice. Applying insights from correspondence schools to law schools offers the potential to create a more inclusive student body and profession by providing greater access to legal education, embracing technological advances, and maintaining a learner-centered approach
Adaptive College Athletics: The Champion Medals Await Those Collegiate Universities Who Compete
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What is the Distribution of National Historical Parks?
No full textIn an increasingly polarized nation, which no longer can reach any consensus about what is meant by the term “common good,” it might be wise to extend additional protections to national monuments from executive branch interference. But prior to doing so, the U.S. Congress may want to undertake some additional research work. Such research could build on the existing charge of the National Park Service as well as other interested parties. By doing so, Congress gains insight into whether and how this federal legislature should expand protections for national historical parks.
My article explains, at least in part, how Congress could carry out such research and policy work in the wake of recent expansions in executive power. It does so by introducing a new national historical parks dataset. This dataset, which draws upon National Park Service (PS) data about the sixty-three (63) existing national historical parks and how they are distributed across national space, may be used to undertake a range of useful analyses. One example of a case in point is a distributional analysis, which could explain how all 63 national historical parks are distributed across national space on the basis of race, income and/or population.
My article undertakes this type of distributional analysis in its four (II-V) additional parts. Part II describes the applicable federal law for national parks. Part III explains my article’s methodological approach. Part IV contains its analysis. Part V contains its conclusions and recommendation, as well as a potentially viable implementation plan
Professional Identity Formation Through Exploring Academic, Professional, and Personal Well-Being
No full textLaw students have reported common barriers during their academic journeys. They report that demands on their time are at an all-time high, that they believe that there’s one “right way” to be a law student and lawyer, or that they are constantly comparing themselves to others. Research suggests, however, that students can shape the way they experience difficult moments by looking at these challenges in positive ways and adopting a perspective that helps them to thrive. Working with psychology researcher Dr. Omid Fotuhi, and a group of law students, we created an intersession course—Thriving in the Law: Tools for Academic, Professional, and Personal Well-Being—that allows students to discuss the myriad of challenges that they face and to support their cultivation of a resilience toolbox to help them persevere when challenges arise.
In this course, we helped students analyze behavior and mindset from a psychological perspective. We know there are certain points in the students’ law school journey where they question their ability and that there are things in their environment that cause them to question themselves. Some are particular to our institution, some to law students as a whole, and some to students generally. We are not trying to take any of these things away; it would be impossible to do. Instead, we focused on helping students make meaning of the events that are maladaptive. We used science-based strategies to help students understand ways to boost motivation, manage distraction, form more meaningful connections, and improve performance. Using exercises, videos, lectures, and journaling, we explored best practices for learning how to thrive academically, professionally, and personally. Together, we helped students develop actionable skills, strategies, and routines for their toolbox so that they can positively adapt to challenging circumstances.
By addressing students’ well-being in these three categories, we are also guiding students in developing their professional identity. American Bar Association (ABA) Standard 303(b)(3) provides that “A law school shall provide substantial opportunities to students for: . . . the development of a professional identity.” Interpretation 303-5 has clarified that “[t]he development of professional identity should involve an intentional exploration of the values, guiding principles, and well-being practices considered foundational to successful legal practice.” Earlier works defining professional identity focused on values and guiding principles. Little time has been spent on developing professional identity through well-being. This article adds to the literature by exploring professional identity through the lens of students’ personal, academic, and professional well-being and discussing a new course where these concepts are explored with students.
This article first provides a brief overview of the history of professional identity formation in legal education. The article then explores the psychological research in the areas of well-being and mindset that influenced our work. With this backdrop, the article discusses in detail the Thriving in the Law course, providing information about the course creation, development, implementation, and lessons learned. Finally, the article provides examples of well-being practices that professors can adapt to their law school classrooms
The Limits of Diplomacy by Treaty: Evidence from China’s Bilateral Investment Treaty Program
No full textEnsnared by Custom: Mary Astell and the American Bar Association on Female Autonomy
No full textRhetoric—the arts of practical discourse that we broadly define as the use of symbols to influence belief and action—has something to say about contemporary legal theory and practice. Law and rhetoric in the West were born together nearly 2500 years ago in the Mediterranean. American law has eschewed its rhetorical roots since the late nineteenth century. Denying law’s rhetorical nature helps to construct an impartial façade, shoring up law’s legitimacy. Admitting the rhetorical nature of law would be to admit its partiality, or the point of view inevitably inscribed with every textual choice. At the same time, rhetorical theorists have turned their attention to many subjects other than law. Though many rhetorical scholars today still study legal rhetoric, much of their focus is on high-profile court cases and Supreme Court opinions. This volume’s contributors believe it is time for an expanded conversation between law and rhetoric, placing a broader variety of legal texts in conversation with a broader variety of rhetorical traditions than is typically available. Each essay here makes a connection between one or more significant texts on rhetoric and contemporary legal texts.https://ir.law.utk.edu/book_chapters/1045/thumbnail.jp