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The Impact of the “Misclassification” of Employees as Independent Contractors on New York City’s Performing Arts Institutions and Gig-Based Performers
No full textDuring the height of the COVID-19 pandemic, the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) made it possible for independent contractors to access unemployment benefits, or “Pandemic Unemployment Assistance” (“PUA”), for the first time. This created a new awareness for how many gig-based performing artists were considered independent contractors. In the wake of the PUA program expiration in 2021, the DOL identified 425,000 fraudulent unemployment benefit claims filed, totaling $5.5 billion, during the COVID-19 pandemic. The fraudulent claims were filed using the real identities of individuals who were not employed, which were likely stolen during previous data breaches of banks, insurance companies, and employers. The extension of unemployment benefits and the following fraud claims ignited a renewed interest in independent contractor misclassification at the New York State Insurance Fund (“NYSIF”) and the New York State Department of Labor (“DOL”) in independent contractor misclassification.
This post was originally published on the Cardozo Arts & Entertainment Law Journal website on April 26, 2024. The original post can be accessed via the Archived Link button above
If Black Lives Really Matter, We Must End Traffic Stops!
No full textThis Article will argue that African Americans will continue to be fatally shot and killed by police disproportionately and in many cases unjustifiably as long as police are allowed to stop motorists for minor non-violent traffic infractions. These stops do little to combat crime and are not worth the lives they upend and the continued unconstitutional racial discrimination that motivates many of these stops. Although the standards for police use of force need to be reformed and police culture has to be changed, the other reform that is imperative in order to significantly reduce the disproportionate fatal police shootings of African Americans is to minimize interaction between police and African Americans and the best way to accomplish this is by eliminating non-violent traffic stops. Police should only be able to stop civilians for violations that truly pose a danger to public safety. However, this Article is not advocating that traffic infractions be ignored. Rather, this Article will argue that there are safer and more efficient means of enforcing traffic rules without police-initiated traffic stops.
This abstract has been adapted from the author\u27s introduction
Enforcing Corporate Purpose: Comparative Approaches
No full textBusiness leaders seem to be embracing a new paradigm where the purpose of for-profit corporations is to profit but lawfully, ethically, sustainably, and in the interests of non-shareholder stakeholders. Skeptical of this Damascene conversion to stakeholderism, some corporate law scholars question how directors might be held accountable for falling short of their commitment to some corporate purpose. One suggestion raised is to concretize corporate purpose as a legally binding director’s duty to the company. As legal enforcement plays an essential role in compliance with law, the critical question is: How might a corporate purpose duty be effectively enforced? This Article argues that the answer likely lies with neither classic private enforcement by shareholders nor public enforcement by regulators, but rather a third way with elements of both. Drawing on comparative insights from three East Asian jurisdictions—Taiwan, the People’s Republic of China, and Japan—this Article contributes to the enforcement literature in two ways. First, it identifies a novel form of hybrid enforcement (“quasi-private”) with distinct characteristics. Second, it critically compares this new enforcement model with an existing hybrid (“quasi-public”) in the context of enforcing corporate purpose. Quasiprivate enforcement offers a potential solution that avoids most of the serious downsides of private, public, or quasi-public enforcement; is uniquely compatible with a corporate purpose duty; and opens fresh perspectives on making directors more legally accountable
Suspension of the Rules: Why Federal Courts Should Not Fear Adjudicating Cases Involving the Legislative Branch
No full textPolitical questions in litigation abound, particularly as the Democratic and Republican parties grow further apart ideologically: Who will be the Speaker of the House, whether to impeach presidents or judges, and whether to expel Members of Congress accused of corruption. The Constitution sets up a separation of powers, where the legislative, executive, and judicial branches can check each other. However, there is a similar doctrine where courts refuse to hear a case because the case presents a topic better left to the political branches: the political question doctrine.
The Supreme Court has not always been reticent to hear cases involving the legislative branch, hearing the case of Powell v. McCormack regarding a Member of Congress’s qualifications to serve. Just a few decades later, the Supreme Court wrote in Nixon v. United States that the judiciary should not hear impeachment cases, reasoning that they are best left to legislative branch resolution. Following the inconsistency in the Court’s review of Powell and Nixon, courts generally embrace Nixon and flout Powell, due in part to Nixon’s ease of application. While courts preferred to follow Nixon’s hands-off approach, this means many legislative controversies are left to the legislative branch to solve. Many scholars disagree about the political question doctrine and debate whether there is really a distinction between political and apolitical questions. This Comment provides a new rule to guide federal courts in hearing cases involving the legislative branch and determining the outer limits of the separation of powers.
In this Comment, I will discuss why federal courts should not be afraid to apply Powell, and I apply a general rule of hearing cases involving substantive issues affecting the legislative branch. I apply such a rule to multiple hypotheticals: Impeachment, congressional procedures like proxy voting or the filibuster, and conflicts involving individual members. This Comment also responds to backlash from those who see judges as “politicians in robes,” and the inevitability of politics in judicial decision-making
Tele-Induction of Buprenorphine for Opioid Use Disorder: Regulatory Flux and Public Confusion
No full textModern Disaster Fragmentation
No full textNatural disasters test us. They exist at the intersection of nature, law, and society to show us where our systems are failing. Beyond physical damage, they magnify weaknesses in our socioeconomic and legal systems. In an attempt to leverage the lessons disasters bring, this Article analyzes the administrative institutions that govern disaster relief from the perspective of law, history, equity, and institutional design. This intersectional analysis uncovers a system fragmented by centuries of disorganization and infused with socioeconomic discrimination. Minor revisions cannot fix our federal approach to disaster relief: an institutional overhaul is required to achieve good governance
