Alabama Law Scholarly Commons - The University of Alabama
Not a member yet
1539 research outputs found
Sort by
Sacrificing Legitimacy in a Hierarchical Judiciary
Get PDFScholars have long worried about the legitimacy of the Supreme Court. But commentators have largely overlooked the inferior federal judiciary - and the potential tradeoffs between Supreme Court and lower court legitimacy. This Essay aims to call attention to those tradeoffs. When the Justices are asked to change the law in high-profile areas - such as abortion, affirmative action, or gun rights - they face a conundrum: To protect the legitimacy of the Court, the Justices may be reluctant to issue the broad precedents that will most effectively clarify the law - and thereby guide the lower courts. The Justices may instead opt for narrow doctrines or deny review altogether. But such an approach puts tremendous pressure on the lower courts, which must take the lead on the content of federal law in these high-profile areas. Presidents, senators, and interest groups then zero in on the composition of the lower courts - in ways that threaten the long-term legitimacy of the inferior federal judiciary. Drawing on political science and history, this Essay explores these legitimacy tradeoffs within our federal judicial hierarchy. To the extent that our legal system aims to protect the legitimacy of the judiciary, we should consider not simply the Supreme Court but the entire federal bench
The Case Against Collective Liability
Get PDFCollective liability-defined as the imposition of liability on a group that may include innocent actors-is commonplace. From ancient to modem times, legislators, regulators, and courts have imposed such liability when they believe that the culprit is a member of the group. Examples of collective liability abound: from surgical teams held jointly liable for a misplaced sponge to entire families evicted from their homes for the drug-related activity of a single person under the One Strike Rule. Courts recognize, of course, that collective liability punishes the innocent, but they view it as a necessary evil to smoke out and punish an unknown wrongdoer in a known group.
Despite the ubiquity of collective liability regimes, they remain under-theorized and under-studied. Proponents of collective liability justify its imposition on two grounds. First, claims of deterrence suggest that the threat of collective liability incentivizes innocent actors to monitor each other and take preventative measures. The second claim is that once a harm occurs, potential liability will encourage innocent actors to share information that would identify the wrongdoer.
Drawing on economic theory and empirical evidence, this Article sheds light on the dark side of collective liability. It concludes that, disconcertingly, collective liability regimes may lead to contrary results and perverse outcomes. Through clear examples, this Article reveals that collective liability can (1) erode actors\u27 incentives to monitor and take preventative measures, (2) incentivize those knowledgeable about the culprit\u27s identity to keep quiet, lie, or even plot with others to lie, and (3) help service providers (e.g., physicians) engage in forms of harmful practices not heretofore known. Fortunately, in certain situations, some of the faults of collective liability are remediable. This Article provides a practical proposal that would minimize strategic behaviors, reduce the detrimental effects of collective liability, and bypass the identification problem altogether. This proposal offers a new path in medical malpractice, civil rights violations, assault, larceny, and a variety of other cases that are subject to group liability
Against Congressional Case Snatching
Get PDFCongress has developed a deeply problematic habit of aggrandizing itself by snatching cases from the Article III courts. One form of contemporary case snatching involves directly legislating the outcome of pending litigation by statute. These laws do not involve generic amendments to existing statutes but rather dictate specific rulings by the Article III courts in particular cases. Another form of congressional case snatching involves rendering ongoing judicial proceedings essentially advisory by unilaterally permitting a disgruntled litigant to transfer a pending case from an Article III court to an executive agency for resolution. Both practices involve Congress reallocating the business of the Article III courts, and both should be deemed to violate the separation of powers doctrine. Unfortunately, however, the Supreme Court\u27s institutional response to this troubling new trend of congressional reassignment of core judicial business has been (at best) halting, tepid, and weak. In a trio of recent decisions, the Justices have given Congress a green light to direct merits results in pending litigation before the Article III courts (Patchak v. Zinke and Bank Markazi v. Peterson) and also blessed giving disgruntled litigants the unfettered right to remove pending judicial business from an Article III court to an Article II agency (Oil States Energy Services v. Greene\u27s Energy Group).
These three decisions reflect a regrettable return to functionalist analysis in separation of powers disputes involving threats to the structural integrity and independence of the Article III courts. Simply put, vesting the judicial power in the federal courts means that judges, not members of Congress, must decide how to interpret and apply the law. This is, after all, the central holding of Marbury v. Madison. Under well-settled separation of powers principles, Congress should not be permitted to aggrandize itself by usurping the decisional authority of the Article III courts. Nor should Congress be empowered to render ongoing federal court proceedings entirely advisory by vesting a litigant who fears an adverse decision with the unilateral power to force a remand of a pending lawsuit to a potentially more sympathetic federal administrative agency. Alexander Hamilton, writing in The Federalist Papers, presciently observed that the judiciary constitutes the least dangerous branch of the federal government. If this is so, it also means that the judiciary is the weakest of the three branches. Separation of powers doctrine and practice must take account of this important structural reality. Vindicating the Madisonian system of checks and balances requires that congressional case snatching, in all of its forms and manifestations, must be categorically resisted and rejected
Contaminated Relationships in the Opioid Crisis
Get PDFUnlike past public health crises, the opioid crisis arose from within the healthcare system itself. Entities within that system, particularly opioid manufacturers, may bear some liability in sparking and perpetuating the current crisis. Unsurprisingly, the allegations underlying the thousands of claims filed in connection with the opioid crisis differ substantially. However, almost all of those claims rely, to some degree, on the strength of the relationship between opioid manufacturers and the healthcare providers who prescribed their products.
This Article argues that the underlying relationship is the heart of the crisis and that this problematic relationship is by no means a thing of the past. This Article provides critically important empirical evidence on the provider-manufacturer relationship. Analyzing a novel data set constructed solely for this Article, the Article examines the role of payments from pharmaceutical companies to healthcare providers in inducing the latter to prescribe more opioids. This analysis reveals robust and consistent empirical evidence that pharmaceutical companies continue to pay healthcare providers, and providers receiving higher levels of payments prescribe more opioids. This analysis is limited to legal payments, so it cannot establish any basis of liability by itself. However, the relationships elucidated by this empirical evidence are the types that can facilitate the activities plaintiffs in the ongoing opioid litigation have alleged. Thus, the evidence developed and presented in this Article provides critically important insight into the role of manufacturers in the opioid crisis and into the litigation that crisis has generated
Abdication through Enforcement
Get PDFPresidential abdication in immigration law has long been synonymous with the perceived nonenforcement of certain provisions of the Immigration and Nationality Act. President Obama’s never-implemented policy of deferred action, known as DAPA, serves as the prime example in the literature. But can the President abdicate the duty of faithful execution in immigration law by enforcing the law, i.e., by deporting deportable noncitizens? This Article argues “yes.” Every leading theory of the presidency recognizes the President’s role as supervisor of the bureaucracy, an idea crystallized by several scholars. When the President fails to establish meaningful enforcement priorities, essentially making every deportable noncitizen a priority, and resources for enforcement are insufficient to achieve full enforcement, the President de facto delegates that discretion to the rank and file without requisite constraints. In so doing, the President abdicates this supervisory role, producing abdication through enforcement
Redliking: When Redlining Goes Online
Get PDFAirbnb\u27s structure, design, and algorithm create a website architecture that allows user discrimination to prevent minority hosts from realizing the same economic benefits from short-term rental platforms as White hosts, a phenomenon this Article refers to as redliking. For hosts with an unused home, a spare room, or an extra couch, Airbnb provides an opportunity to create new income streams and increase wealth. Airbnb encourages prospective guests to view host photographs, names, and personal information when considering potential accommodations, thereby inviting bias, both implicit and overt, to permeate transactions. This bias has financial consequences. Empirical research on host earning rates found that White hosts earn significantly more than minorities, even when controlling for location, size, and amenities. Airbnb\u27s algorithm augments the effects and propensity of individual user bias, creating a system wherein allegedly race-neutral variables serve as proxies for discrimination. Contemporary redliking perpetuates historic inequality related to housing wealth. In the early twentieth century, redlining maps were used to justify withholding investments from Black communities. Today, redliking continues the practice of directing wealth to White communities, reinforces systemic real property barriers by depriving minority hosts of important revenue streams, and exacerbates the racial wealth gap.
This Article examines the liability of Airbnb and similar websites for discrimination experienced by minority short-term rental hosts. The ability of the Fair Housing Act and Civil Rights Act, laws originally enacted to abolish housing discrimination and protect minority consumers, to combat redliking is complicated by the fact that sites such as Airbnb serve multiple purposes; while guests use the platform to identify and book lodging, hosts use the site to advertise available accommodations. Looking to judicial interpretation of platform liability in the context of online speech, this Article proposes two approaches - a general-function test and a fragmented function test - to determine website liability for discrimination against short-term rental hosts. Noting the limitations of the existing antidiscrimination legal framework, this Article argues that eradicating redliking requires incorporating lessons on platform design from behavioral economics as well as eliminating opportunities for website algorithms to amplify and operationalize user discrimination
The Oxford Handbook of Prosecutors and Prosecution
No full textThe power of the modern prosecutor arises from several features of the criminal justice landscape: widespread use of law and order political rhetoric and heightened fear of crime among voters; legislatures\u27 embrace of extreme sentencing ranges to respond to such concerns; and the uncertain or limited accountability of prosecutors to the electorate, the bar, or other political and professional constituencies. The convergence of these trends has transformed prosecution into an indispensable field of study.This volume brings together the work of leading international scholars across criminology, sociology, political science, and law - along with contributions from reform-minded practitioners - to examine a variety of issues in prosecutorial behaviour and the institutional structures that frame their behavior.The Handbook connects the dots among existing theoretical and empirical research related to prosecutors. Major sections of the volume cover (1) prosecutor performance during distinct phases of a criminal case, (2) the features of the prosecutor\u27s environment, both inside the office and external to the office, that influence the choices of individual prosecutors and office leaders, and (3) prosecutorial strategies and priorities when dealing with specialized types of crimes, victims, and defendants. Taken together, the chapters in this volume identify the founding texts, discuss leading theoretical and methodological approaches, explain the scope of unresolved issues, and preview where this field is headed. The volume provides a bottom-up view of an important new scholarly field.https://scholarship.law.ua.edu/fac_books/1052/thumbnail.jp
