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The Federal Pregnant Workers Fairness Act: Statutory Requirements, Regulations, and Need (Especially in Post-Dobbs America)
Get PDFThe federal Pregnant Workers Fairness Act, enacted in December 2022, is landmark legislation that will help ensure workers can stay healthy through a pregnancy. It responds to the reality that pregnant workers may need small changes at work, such as permission to sit periodically, carry a water bottle, relief from heavy lifting, or reduced exposure to potentially dangerous chemicals. Workers may also need schedule modifications or leave for prenatal appointments, childbirth, or post-partum recovery, or accommodations to address medical conditions related to pregnancy or childbirth.
Previously, federal sex discrimination law and federal disability law sometimes required employers to provide such accommodations, but many pregnancy-related needs fell between the cracks. Both employees and employers were confused about how the requirements of those laws interacted. PWFA, passed with strong bipartisan support, provides a clear standard modeled on disability law: employers must provide reasonable accommodations for pregnancy, childbirth, and related medical conditions, unless doing so would be an undue hardship.
This article analyzes the new federal statute’s substantive provisions in detail, as well as key legislative history, models for the statutory language, and the Equal Employment Opportunity Commission’s regulations to implement the new law. It explains the basic reasonable accommodation requirement, other substantive requirements, the likely scope of “related medical conditions,” and the remedies available if violations occur. The article also highlights how new restrictions on abortion access make PWFA even more essential. In states that have sharply curtailed abortion rights, more women are carrying pregnancies, including high-risk pregnancies, to term. PWFA is not a substitute for the autonomy to make decisions regarding reproductive health, but it can help keep pregnant workers healthy and assure they are treated with dignity and fairness
The Business of Securities Class Action Lawyering
Get PDFPlaintiffs’ lawyers in the United States play a key role in combating corporate fraud. Shareholders who lose money as a result of fraud can file securities class actions to recover their losses, but most shareholders do not have enough money at stake to justify overseeing the cases filed on their behalf. As a result, plaintiffs’ lawyers control these cases, deciding which cases to file and how to litigate them. Recognizing the agency costs inherent in this model, the legal system relies on lead plaintiffs and judges to monitor these lawyers and protect the best interests of absent class members. Yet there is remarkably little data on the business of securities class action lawyers, leaving lead plaintiffs and judges to oversee this area without the tools to understand how it works.
This Article looks inside the black box of securities class action lawyering to explore the business behind these cases. Our study includes hand-collected data on all securities fraud class actions against public corporations filed between 2005 and 2018, a total of nearly 2500 cases. We find that the business of securities class action lawyering is far more complex than prior scholarship has recognized. Contrary to conventional wisdom, there are not two tiers of plaintiffs’ law firms; instead, there are multiple tiers of firms, each with its own client base, litigation patterns, and revenue model. Our study gives lead plaintiffs and judges the data and tools they need to understand these tiers and to compare the performance of the law firms within them. We also examine how these law firms are compensated, finding that judges’ fee awards fail to account for the difficulty of cases or the risk of nonrecovery in any systematic way. These fees are crucial to ensuring that law firms pursue the right cases on behalf of shareholders, so we suggest ways that judges can use data to improve fee awards. As we will see, the path to reforming securities class actions starts with understanding the business behind them
The Rights of Donor-Conceived Persons in Colorado: America\u27s First Foray into Abolishing Anonymous Gamete Donation
Get PDFOn May 31, 2022, Colorado became the first state in the country to ban anonymous gamete (i.e., sperm and egg) donation through the enactment of the Donor- Conceived Persons and Families of Donor-Conceived Persons Protection Act. By 2043, donor-conceived Coloradans over the age of eighteen will gain access to the donor’s identifying information, such as the donor’s full name and permanent address, as well as their medical history. However, this newfound right to information also imposes heightened obligations on donor gamete agencies to obtain and track the data from their donors. Given the novelty of such legislation in the United States, crucial questions exist for the feasibility and efficacy of ensuring compliance within the gamete donation industry. This Note serves to explore four key provisions of the Act: access to donor information, donor limitations, age requirements for donors, and the educational materials provided to gamete donors and recipients. After analyzing these provisions, this Note compares the gamete donation legislation in Colorado with those found in the United Kingdom, Australia, and Denmark. This Note concludes by recommending the best path forward for upholding the rights of donor-conceived persons, gamete donors, and gamete recipients alike: a register that facilitates the tracking of identifying information for all parties involved
The Antitrust Text
Get PDFThe antitrust laws are fully stated in two statutes that seem absurdly brief in relation to the work they do. Their brevity in relation to coverage has led to three phenomena. First is the tendency of courts to use the statutory text as no more than a starting point, treating it as a general principle, or “Magna Carta,” of free enterprise, and sometimes ignoring the statutory language altogether. Second, courts have responded to the statutory brevity with judicial development of numerous rules not mentioned in the statutory texts. The third phenomenon is a kind of expansionism, or belief that the antitrust laws can be used to control the entire world, or at least the entire economic world.
This article considers what antitrust policy would look like if an antitrust “textualist” actually relied on the antitrust statutes themselves to control all important issues of interpretation. The language of the antitrust laws, although brief, actually says a great deal more than is commonly acknowledged. Further, the Sherman and Clayton Acts are statutes after all. They should provide the first place to look to for guidance on enforcement policy. How much different would antitrust look if we centered policy on the statutory language, using only generally accepted forensic tools and recognized canons of statutory interpretation to understand it? Among the areas where the statutory language provides considerable direction are the goals of the antitrust laws; market power and market delineation requirements; the probabilistic effects requirement of the Clayton Act, standing and the indirect purchaser rule, conspiratorial capacity and antitrust personhood, and extraterritorial effects
A Theory of Genetic Dimensions in the Law
Get PDFSince the biotechnology revolution of the 1970s, genetic science and genetic technology have captured the public imagination. They have become a centerpiece of how we understand ourselves, our relationship with other humans, other living beings, our environment, and—indeed—with the universe. Through this evolution of understanding, genetic phenomena have acquired many meanings, some rooted in objective reality and others subjective and dependent on individual perceptions and sentiments.
However, legal decision-making and policymaking have not kept pace and reflect only a partial understanding of the multiple dimensions of genetic phenomena, which are forced into narrowing legal pathways, neglecting vital interests. As the legal uses of genetic technologies and disputes involving such technologies become increasingly prevalent, the disconnect between genetics and the law grows and deepens.
This Article identifies and analyzes the impact of the longstanding judicial and legislative practice of applying ill-fitting legal constructs to genetic phenomena. We use case studies drawn from various legal areas to show how forcing genetic phenomena into existing legal categories neglects important genetic interests.
The deficiencies of case law and legislation addressing genetics highlight the need for a more comprehensive way of thinking about, and legally recognizing, interests stemming from the multiple dimensions of genetic phenomena. In response, we provide a conceptual framework for incorporating genetic phenomena more fully into the law. Our approach offers legislators, judges, regulators, and lawyers a new way of thinking about genetics in the law, one that accounts for and accommodates the full range of individual, group, and societal interests in genetic phenomena
Sotomayor cites Maurer faculty member in SCOTUS’ decline to hear Alabama bite mark case
Get PDFThe case of an Alabama man convicted of murdering his wife in 1985 will not be reviewed by the U.S. Supreme Court, despite evidence that, nearly 40 years later, has been “wholly discredited.”
The Supreme Court denied certiorari in the case of McCrory v. Alabama, but Justice Sonia Sotomayor cited research from Indiana University Maurer School of Law Professor Valena Beety in her concurring agreement with the court’s decision.
Charles M. McCrory was convicted for the murder of his wife, Julie Bonds, based in large part on expert testimony from an odontologist who matched McCrory’s teeth to two bite marks on Bonds’ shoulder. But the odontologist retracted his testimony later, writing that science has revealed the limitations of bitemark evidence. McCrory had requested a new trial, which was denied by the Court of Criminal Appeals of Alabama
Velazquez named to SEC Investor Advisory Committee
Get PDFThe U.S. Securities and Exchange Commission announced today (Sept. 10) six new members—including an associate professor from the Indiana University Maurer School of Law—to fill vacancies on its Investor Advisory Committee.
Prof. Alvin Velazquez, who joined the Indiana Law faculty this summer, is one of only two members of academia newly appointed to the committee. The committee advises the SEC on regulatory priorities and initiatives to protect investors and promote the integrity of the U.S. securities markets
The D.C. Circuit as a Conseil D\u27Etat
Get PDFA storm is brewing in American administrative law. More and more federal judges, including a majority of the Justices of the Supreme Court, openly question longstanding doctrine. A throng of academics profess skepticism of the same. This formalist turn among judges, lawyers, and academics challenges the very legitimacy of the administrative state. But what does this tempest portend for the D.C. Circuit?
The D.C. Circuit is often described as the nation’s second highest court, but its precise role in the federal judiciary is only fifty years old. As a member of that appellate court, now-Chief Justice John Roberts once admitted that the D.C. Circuit has a “special responsibility to review legal challenges to the conduct of the national government.” But is that “special responsibility” contingent and perhaps evanescent? Is it formally and functionally in conflict with the nation’s highest court? Or is it an inevitable feature of judicial review of agency action? The current composition of the D.C. Circuit and the Supreme Court, the fractious state of national politics, and the formalist turn in administrative law provoke questions about the proper role of the D.C. Circuit in shaping administrative law. This Article offers some answers by comparing that court to the highest administrative tribunal in France, the Conseil d’État.
The Article makes three contributions. First, the Article traces a crucial strand of recent critiques of the administrative state—namely an Anglophone suspicion of French administrative law stretching back to Albert Venn Dicey—and explains why that thinking relies on an outdated understanding of the Conseil d’État. Second, the Article develops a comparative analysis to uncover how the D.C. Circuit’s docket, composition, and doctrinal development mark out its strange and special position in the federal judiciary. Third, the Article uses that institutional perspective on the D.C. Circuit to better understand the contours and consequences of three crucial controversies in administrative law, including agency independence, the major questions doctrine, and the shadow docket
Doe Not Worry: Expanding Protections for Unaccompanied Children
Get PDFA recent Fourth Circuit decision created a circuit split regarding the standard applied to constitutional violations in secure holding facilities. The more “liberal” professional judgment standard—as promulgated by Youngberg v. Romeo and applied to unaccompanied immigrant minors in Doe 4 ex rel. Lopez—is necessary but insufficient for the protection of unaccompanied children. This Note first examines the origins of the professional judgment standard in the Youngberg case. Then, cases are surveyed showing that the Supreme Court has recognized children as a vulnerable population, and current regulations, legislation, and court opinions recognize the vulnerabilities of unaccompanied children. With these ideas in the foreground, this Note shows that the standard, as applied to adults and to other children, is not sufficient protection. Based on these insufficiencies, this Note then assesses the system experienced by the petitioner. After an evaluation of the purpose of that system, it is clear there are not adequate structures in place to realize that purpose. The Youngberg standard enables those inadequacies; therefore, a more robust standard is needed for the adequate protection of unaccompanied minors like Doe 4. Future research should be done to develop new standards to apply in these cases and ensure vulnerable populations are protected by the systems designed to care for them