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Come, Stay, and Enjoy Your Day: Sex Trafficking and Franchisor Liability Under Section 1595 of the Trafficking Victims Protection Reauthorization Act
Full text linkCommercial sex trafficking continues to be a major national and international issue. In 2000, Congress enacted the Trafficking Victims Protection Act to combat sex trafficking, protect victims, and punish violators through developing international minimum standards and a complex, national legal scheme for bringing human trafficking claims. In 2003, Congress added § 1595, a civil liability statute, which it broadened even further in 2008. However, the statute remained largely unused during its first fifteen years, spawning less than 300 claims, most of which involved forced labor and not sex trafficking. However, victims of sex trafficking are starting to utilize the statute to hold third parties accountable for benefitting from sex trafficking and doing nothing to prevent it. The hospitality industry plays a unique role in the sex trafficking industry. Hotels are a leading venue for sex trafficking, reporting more incidents than brothels. While many hotel franchisors established policies and training to recognize sex trafficking, hotels and their franchisors continue to benefit from the continued use of their hotel rooms for sex trafficking ventures. However, the implementation of these policies and training could make hotel franchisors vicariously or directly liable for sex trafficking under § 1595. If a hotel franchisor implements a franchise-wide policy and enforces it, the hotel franchisor risks creating an agency relationship regarding sex trafficking, potentially becoming vicariously liable for the negligence of its hotel franchisees. Likewise, if a hotel franchisor implements a policy but fails to ensure its efficient enforcement, the hotel franchisor could be directly liable for neglecting a duty it voluntarily undertook. While § 1595 can be used to hold hotel franchisors’ feet to the fire in combatting sex trafficking, this use could also discourage hotel franchisors from taking any actions at all
The Secret Sauce: Examining Law Schools that Overperform on the Bar Exam
Full text linkSince 2010, law schools have faced declining enrollment and entering classes with lower predictors of success despite recent signs of improvement. At least partly as a result, rates at which law school graduates pass the bar exam have declined and remain at historic lows. Yet, during this time, many schools have improved their graduates’ chances of success on the bar exam, and some schools have dramatically outperformed their predicted bar exam passage rates. This Article examines which schools do so and why. Research for this Article began by accounting for law schools’ incoming class credentials to predict an expected bar exam passage rate for each ABA-accredited law school. This Article then examines each law school’s aggregated performance on bar exams for which its graduates sat based on relative and absolute performance, weighing the difficulty of each state’s bar exam. Through this analysis, this Article identifies law schools with consistently higher and lower first-time bar exam passage rates over a period of six years between 2014 and 2019. In addition to identifying law schools that overperform on the bar exam, this Article is a novel contribution not only to the legal education literature but also to the quantitative methodological literature, given its unique tailoring of the classic value-added modeling design to the realities of the bar exam. In the second phase of research for this Article, the authors surveyed administrators at these overperforming and underperforming law schools, as well as law schools in the middle of the distribution, to qualitatively assess how these law schools approach the bar success of their students. Collectively, this Article provides significant insight into how law schools are responding to recent negative trends in bar passage rates, validates successful approaches to mitigate these negative trends, and recommends options available to law schools seeking to improve their students’ bar passage rates
Private Debt for Public Good
Full text linkIf “he who controls the purse makes the rules,” then should corporate lenders be able to nudge borrowers to improve their societal impact? There is growing consensus that firms should mitigate environmental and social harms arising from their private business activities, yet there is little agreement on how best to ensure this end. A host of ad hoc market efforts have emerged, including public pledges to certain goals, voluntary disclosures to investors, and niche financial innovations designed to incentivize and evidence prosocial corporate activity. Despite these developments, market efforts always seem to fall short of the effective self-monitoring necessary for so-called environmental, social, and governance (ESG) outcomes. Observers often attribute these shortcomings to market failures—agency costs or information asymmetries—and negative externalities, which firm managers and investors are thought ill-equipped to manage. Yet, the unique potential of corporate lenders to address these shortcomings has been largely overlooked by the market and, consequently, the literature. This Article analyzes an original dataset of more than 125 contracts in the emerging sustainability-linked loan market to explore the potential of lender monitoring for ESG outcomes. This six-year-old market has Dell promising to increase sustainable packaging, Lululemon committing to close the gender pay gap amongst its employees, and Hewlett-Packard pledging to improve the racial diversity of its executives—all in exchange for more favorable terms in novel loan agreements. As the first in-depth review of the fastest growing segment of the $5.5-trillion syndicated loan market, this Article shows how the far-reaching influence of “universal lenders,” combined with the lender’s toolkit and traditional relationship with borrowers, theoretically equips lenders to better overcome information asymmetries and agency costs that have undermined other market-based ESG efforts. It argues, however, notwithstanding their enhanced informational insights and commitment mechanisms, lenders are hamstrung by a predictable disregard of negative externalities, which reveals the truly nominal value of ESG to firms. But while many scholars view negative externalities as a reason to avoid such market-based ESG solutions, this Article insists on the very opposite outcome. Policy interventions that shift the burden of externalities to borrowers, lenders, or both should be used to effectively harness the clear benefits of lenders as private monitors to ensure the ESG movement has real and lasting effect
The \u3ci\u3eHouse\u3c/i\u3e Built by Fire: How Litigation has Sparked Impending Changes to NCAA
Full text linkA commentary on the NCAA’s Amateurism model and how it has recently come under fire as many lawsuits have forced the NCAA to change its rules and regulations
The Originalist Case Against the \u3ci\u3eInsular Cases\u3c/i\u3e
Full text linkConcurring in United States v. Vaello Madero, Justice Neil Gorsuch argued that the Insular Cases are contrary to the Constitution’s original meaning and should be overruled. The Supreme Court’s decisions in the Insular Cases, which created a second-class constitutional status for U.S. overseas territories, have also been criticized by leading originalist scholars such as Professors Gary Lawson and Michael Paulsen. However, there is no fully developed scholarly assessment of the Insular Cases from an originalist perspective; their inconsistency with an originalist approach is more assumed than proven. This Article fills that gap. Using the methodology of original public meaning, it considers the constitutional status of U.S. territories from the founding era through the early nineteenth century to the constitutionalization of U.S. citizenship in the Fourteenth Amendment.
Although the matter is somewhat more complicated than Justice Gorsuch’s concurrence may suggest, this Article finds no foundation in traditional originalist sources for the Insular Cases’ differential treatment of overseas territories. To the contrary, it concludes that U.S. territories were widely understood to be broadly encompassed by the Constitution without differentiation until an academic and judicial reassessment at the beginning of the twentieth century, impelled by U.S. acquisition of territories with substantial non-white populations, set the stage for the Court’s newly invented doctrine. This Article thus concludes that Justice Gorsuch’s assessment is correct and should carry weight with the Court’s originalist-oriented majority. Finally, this Article examines the implications for territorial government of overruling the Insular Cases, which it concludes would be significant but not substantially destabilizing
A Quiet Privilege: \u3ci\u3eGarrity\u3c/i\u3e, Internal Investigations, and the Need for a Preference of Silence Among Public Employees
No full textWhen a public employee is asked to testify against themselves or face termination, they are presented with a trilemma. They may choose to respond to questions falsely, answer truthfully, and suffer criminal sanctions, or remain silent and lose their job. In Garrity v. New Jersey, the Supreme Court resolved this trilemma by ruling that, when a public employee is compelled to answer questions, the Fifth Amendment grants the employee immunity for their testimony. The Supreme Court “solved” the trilemma again, in Gardner v. Broderick, by saying that an employee who is fired for invoking their Fifth Amendment right against self-incrimination can be reinstated.
Together, Garrity and Broderick mean that both speaking and silence may protect public employees. These decisions suggest a desire to maintain the efficacy of internal investigations. The Court has suggested that when an employee is asked questions about their employment, and they are neither implicitly nor explicitly asked to waive their Fifth Amendment rights, they may be terminated. But this accommodation for internal investigations comes at the expense of formal criminal proceedings. Careless or malicious investigators can give public employees broad immunity for statements they make to investigators. This places a heavy burden on prosecutors to prove they did not benefit from the employee’s statements in their prosecution. The problem is especially concerning in law enforcement, where internal investigations have proven to be an ineffective method of curbing offensive police conduct.
In light of the ineffectiveness of internal investigations, the burden on criminal investigations, and the legal discrepancy between the rights of a public employee and private citizens, this Note argues that Garrity should be overturned, and internal investigators should not be allowed to condition employment on testimony. Public employees should be required to remain silent in the face of improper coercion
Reviving the Value Creation Principle in International Taxation
No full textThis Article aims to clarify the value creation principle and its role in shaping international tax policy that aligns taxation with the location of economic activity. It examines recent developments in international taxation, including aligning taxation with the place of substance, taxing “excess returns” and allocating taxing rights to market jurisdictions, each addressing different aspects of value creation. The Article advocates for a balanced profit allocation method that considers both supply-side and demand-side factors, offering a comprehensive approach to developing a fair and effective international tax framework
Practicing Proportionality
No full textAt the heart of the Eighth Amendment\u27s Cruel and Unusual Punishments Clause are two concepts of proportionality—absolute and relative. Absolute proportionality ( cruel ) asks whether the sentence is commensurate with the state\u27s purposes of punishment. Relative proportionality ( unusual ), by contrast, asks whether the sentence is relatively similar to the outcomes of similar cases. Absolute proportionality sets limits on punishment based on the relationship between the punishment and the intended punitive goal; relative proportionality sets limits on punishment based on the sentencing outcomes in similar cases. In recent years, the United States Supreme Court has used the concept of absolute proportionality to create categorical prohibitions for the use of the death penalty for minor offenders, intellectually disabled offenders, and for nonhomicide crimes. The concept of relative proportionality, however, has received little attention. Indeed, ignoring this concept has perpetuated disparity in state court sentencing of death-eligible crimes. This Article argues for the restoration of relative proportionality under the Eighth Amendment and proposes a theoretical model for its application. Further, the Article addresses the central problem of relative proportionality—the inherent difficulty in applying it to individual cases—by offering a practical framework for determining the relative proportionality of a given case. Part I outlines the concept of relative proportionality and tracks its origins and jurisprudence. Part II explores the current applications of relative proportionality by various states and describes the unfortunate outcomes of these inadequate approaches. Part II offers a theoretical model for practicing the concept of relative proportionality and describes its application. Lastly, Part IV illustrates the jurisprudential and sentencing benefits of practicing proportionality
Taxing Torts Today and Tomorrow
No full textThis article shows how tax law has long subsidized tortfeasors, often to the detriment of victims. Changes in the 1980s reduced the tortfeasor subsidy but did not eliminate it. The article shows how various changes which purported to help victims have, in practical terms, helped tortfeasors.
The article first covers the pre-1985 tax history of making torts profitable. The resulting financial incentives triggered multiple legal changes, which the article outlines prior to covering them in depth. The statutory issues involve Internal Revenue Code sections 104 (allowing victims to exclude personal physical injury payments from income); 130 (purporting to facilitate structured settlements to help victims); 461(h)(2)(C) (purporting to defer deductions for tortfeasors); and 468B (purporting to facilitate structured settlements to help victims).
The body of the article starts with a discussion of the Supreme Court\u27s unfortunate 1981 decision in Norfolk & W. Ry. Co. v. Liepelt, which purported to remove a victim subsidy but, in practical terms, created a tortfeasor subsidy. Unfortunately, the Liepelt doctrine continues to spread.
The article then demonstrates how sections 130, 461(h), and 468B each fail to accomplish their intended goal of aiding victims or of removing tortfeasor subsidies. The article shows how, in practical terms, each provision, contrary to common wisdom, hurts victims and helps tortfeasors.
In conclusion, the article suggests simple statutory changes which would eliminate tortfeasor subsidies. Congress and state legislatures should statutorily remove the Liepelt net-of-tax computation. Congress should amend section 104 to eliminate the exclusion for lost wages. Congress should amend section 416(h) to permit an accrued deduction for the present value of tort obligations. Congress should combine sections 130 and 468B into a single provision that facilitates a tortfeasor deduction for a present value payment to a settlement fund. This fund should retain a cost basis in an annuity funding payment to victims. With these simple changes, Liepelt and sections 104, 130, 461, and 468B will function as apparently intended by eliminating favoritism toward tortfeasors while actually helping victims. As a result, their practical unintended tortfeasor subsidies will disappear