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A Common-Law Remedy for the Eviction Epidemic
Get PDFEviction burdens tenants and their households with incredible hardship. But it long has been the standard legal remedy when a tenant fails to keep up with rent payments. The combination of these two facts has birthed a crisis. Many commentators have responded to the crisis by suggesting legislative or executive solutions, but courts and the common law have been mostly ignored. This article focuses on courts and the role they can play under the common law to minimize unnecessarily harmful evictions. By considering reasonable expectations and interests of not only landlords, but of tenants and the public as well, this article proposes that courts should opt for a monetary remedy in certain cases in which eviction may otherwise be the norm. In many cases, eviction lacks theoretical justification. Although some landlords are intimately affected by the day-to-day use of their rental units, others are not. In fact, some landlords hold so many rental units that their interest in the units is more like that of a distributor’s interest in commercial goods. They seek to generate income from the units, but rarely, if ever, use the properties themselves. When a rent arrears dispute involves such a landlord on one side, and a tenant likely facing homelessness on the other, eviction may be unjustified and a monetary remedy perhaps should replace it. If courts were to consider this approach, they could find support from common-law remedial principles in both contract and property
Evidentiary Inequality
Get PDFFederal employment discrimination law is rife with evidentiary inequality. Courts allow employers to draw from a broad palette of evidence to defend against discrimination claims, while highly restricting the facts from which plaintiffs can prove their claims. This Article draws from hundreds of cases to show how judges favor the employer\u27s evidence and disfavor the plaintiff\u27s evidence across multiple dimensions, such as time, witnesses, documents, relevance, and reliability. Judges have created a host of named doctrines that severely restrict the evidence plaintiffs are allowed to use to prove their discrimination claims. At the same time, a host of unnamed, and thus invisible, doctrines and preferences further bias the evidentiary record in favor of the employer. The cumulative weight of the named and invisible doctrines make it difficult for plaintiffs to prove discrimination. This evidentiary inequality is court created and is not required by or contained within the federal discrimination statutes. This Article argues that judges must create clear rules that guard against this evidentiary inequality
Meaningful Access: True Equality or Frightening Reality?
Get PDF“It’s too good to be true” summarizes the decision in Childress v. Fox Associates, LLC. The Childress court admirably aimed to create a more accessible society for individuals with disabilities but may have unintentionally created the exact opposite. Courts require public accommodations to provide “meaningful access” to individuals with disabilities in order to comply with the Americans with Disabilities Act (“ADA”). However, “meaningful access” is an unclear, evolving standard. The Childress decision strayed from precedent by heightening the standard for meaningful access to a level equal to identical access. While this heightened standard strives for the goal of true equality, it consequently shifts the focus of courts’ decisions to the sufficiency of a claimed affirmative defense – that is, the requested accommodation would pose an undue buden. Analyzing a case based on the sufficiency of an affirmative defense – especially in the context of ADA Accommodations – is detrimental because it forces courts to determine whether an accommodation must be provided at all, instead of deciding what degree satisfies meaningful access. The framework for analyzing meaningful access set forth by the Childress decision may create detrimental impacts long into the future
Can Artificial Intelligence (“AI”) Replace Human Arbitrators? Technological Concerns and Legal Implications
Get PDFArtificial intelligence (“AI”) is no longer a precursor to the future—it is already here in the mainstream. Some countries, for example, have started to implement AI-based technologies into their adjudication processes. It has been reported that Estonia is currently developing an AI judge that can adjudicate small claims disputes of less than º7,000 and that China already has digital courts presided over by an AI judge. Together with the triggering effect of such futuristic news, AI studies that predict the outcome of litigation have stirred heated debate about the possible arrival of AI judges