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The Case for Applying Comcast\u27s Causal Canon to the Pregnant Workers Fairness Act
Get PDFFor as long as there have been employer-employee relationships, there has been the potential for problems in those relationships—some of which are rooted in discrimination. In an ideal world, employees and prospective employees would not face adverse decisions based on protected characteristics. Unfortunately, the world is not always ideal and such decisions can and do happen. That said, the law attempts to bring justice when discrimination claims arise, working to balance the interests and rights of wronged employees while also setting forth standards that require employees to meet certain thresholds when making those claims. Throughout modern history, the United States Supreme Court has analyzed and determined what those thresholds are, holding that different principles apply in various employment situations. Causation standards, specifically, have evolved over time and have been applied differently based on the claim asserted
Just Consumer Financial Protection: Prevention or Cure
No full textThis article examines the relationship between two complementary and related consumer financial protection approaches: regulatory oversight of financing terms (ex ante protection) and bankruptcy discharge of consumer debts (ex post protection). Although often conceptualized as distinct areas of law, consumer financial regulation and consumer bankruptcy are two sides of the same coin and function together to treat the harms of financial distress. This article seeks to explore the relationship and tensions between these various approaches by juxtaposing consumer debtor-creditor law attitudes and legal developments in continental Europe (primarily France and Germany) with those in the United States. After a brief overview of consumer indebtedness in the United States, Part I examines consumer financial regulation trends in the United States, France, and Germany.
Part II compares and contrasts US, German, and French approaches to consumer bankruptcy and outlines some recent developments in insolvency law in these systems. Part III explains why optimal consumer protection laws should recognize the importance of both ex ante regulation and ex post bankruptcy discharge and should embrace the complexity inherent in debtor-creditor law. The article concludes with a brief consideration of how and why legal reforms should act holistically to improve the financial wellbeing of the most economically vulnerable consumers in society
Model Mediation Course Syllabus With Teaching Notes
No full textThis course syllabus grows out of a series of articles developing Real Practice Systems Theory in mediation practice and education. This course would teach students about mediation of legal disputes in the US, including the roles of both mediators and attorneys. There is great value in teaching students about both roles of mediators and attorneys in the same course. Practitioners in both roles share some basic values and principles, and they need to understand each others’ roles and typical techniques in mediation.
The syllabus discusses the roles of attorneys, mediators, and parties, procedures before and during mediation sessions, and the use of technology in mediation. It suggests single-stage and multi-stages simulations to illustrate the teaching objectives. It includes links to short readings for students available for free on the internet, including some that are highly recommended and can easily be included in any mediation course.
This model syllabus sketches an overall framework that instructors can adapt. Faculty can make adjustments about the topics covered and the amount of time devoted to particular topics. They can continue using syllabi and readings from prior semesters and add specific elements and readings from this model. The syllabus is designed for simulation courses but can be modified for clinical courses
Postconviction Remedies, Retroactivity, and Montgomery v. Louisiana’s Other New Rule
Get PDFThe U.S. Supreme Court has turned its attention back to the law of habeas corpus, with a string of new decisions that emphasize the limited scope of federal habeas relief. But focusing one’s sights on only those decisions would overlook what has transpired at the Supreme Court in recent years in state habeas cases coming directly to the Supreme Court from the state postconviction courts. Montgomery v. Louisiana, in particular, shifted the division of power between the Supreme Court and state postconviction courts for questions conventionally considered to be questions of state law. Montgomery, on the surface, is a decision about retroactivity and th
A “RULE MAKING” CLASS: THE FEDERAL TRADE COMMISSION’S EXPANSIVE PER SE BAN ON NONCOMPETE CLAUSES: AUTHORITY, ENFORCEABILITY, AND THE NEED FOR CONGRESSIONAL ACTION
Get PDFA non-compete clause is “an agreement or contract not to interfere or compete with a former employer (as by working with a competitor).” The Federal Trade Commission (“FTC”) has proposed a per se ban on non-compete provisions in employment contracts. This would arguably be the FTC’s second substantive rule under the FTC Act. This substantive rule making departs from the traditional common law style rule-making process in which the courts create antitrust jurisprudence standards. In this way, the FTC has challenged the practice by exploring a new avenue of power under Section 5 of the FTC Act
Liking, Linking, and Tweeting: Mental Health, Mentoring, and Professional Responsibility in the Age of Social Media
Get PDFIt should come as no surprise that interaction through social media and other forms of technology mediated communications (“TMC”) has grown dramatically over the last two decades. The Covid-19 pandemic exacerbated this turn to technology. Communicating through some form of technology, rather than face-to-face, necessarily changes the methods we use to communicate (a smile emoji in a text replaces a smile you might give in a face-to-face discussion, for example). Studies support, however, that, in addition to changing the means by which we communicate, our increased reliance on TMC may also be changing us. Among other things, some studies show a correlation between increased reliance on TMC and increased rates of mental health challenges, such as loneliness, depression, and anxiety. Given that extensive reliance on TMC may result in negative impacts on the mental health of its users, law schools, individual lawyers, and the broader legal community should take action to monitor for and mitigate these potential harms. The need to address this problem is particularly important in the current climate, as law firms, judges, and other leaders in the profession continue to grapple with determining what work environments and communications will look like going forward in the legal profession now that Covid-19 related restrictions on in-person interactions have been lifted. This Article explores the correlation between our ever-increasing reliance on TMC and increased rates of loneliness, depression, and anxiety. It examines the problem in the context of the legal profession, focusing particularly on the resulting potential impairment of the lawyer’s ability to maintain and establish relationships. It reflects on the potential impact of that impairment on a vital component of professional development – mentorship. Then, drawing on lessons learned from Social Presence Theory, the Article offers proposals aimed at mitigating the potential negative effects of extensive reliance on TMC
“Uphill . . . Both Ways!” The Issues with Missouri’s Compulsory Attendance Legislation
Get PDF“When I was a kid, I walked to school uphill . . . both ways!” Hidden in this adage is a kernel of truth regarding America’s relationship with education: for many Americans, school attendance is often difficult for more reasons than just the early morning struggle of getting out of bed. Prior to 2020, 15% of students missed at least 10% of the school year. In the wake of the COVID-19 pandemic, absenteeism increased at worrisome rates; in the 2021-2022 school year, more than 25% of students missed at least 10% of the school year. In Missouri specifically, chronic absenteeism increased by 11% between the 2018-2019 and the 2021-2022 school year. As a national conversation centers around how the United States can address this absenteeism problem, the judiciary has not been silent. In the summer of 2023, the Missouri Supreme Court contributed to the dialogue by re-examining Missouri’s truancy legislation in State of Missouri v. Caitlyn C. Williams, State of Missouri v. Tamarae L. LaRue (“Williams”)
