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Alumna Doris Pryor, ’03, Nominated to Seventh Circuit
Get PDFPresident Joe Biden announced three judicial nominees on May 25, including the Hon. Doris L. Pryor—a 2003 graduate of the Maurer School of Law—to the U.S. Court of Appeals for the Seventh Circuit
Ending Demand for Modern-Day Slavery: An Analysis of Human Trafficking in the Global Marketplace
Get PDFThe purpose of this paper is to inform readers of the prevalence of and increasing demand for human trafficking, both domestically and globally, and to propose necessary next steps governments must take in order to end the demand for such human exploitation. This paper will closely analyze the issue of trafficking humans for sex and labor within the Western Hemisphere and throughout Asia by using the United States and China as primary case studies. These case studies analyze the specific actions or inactions taken by the United States and Chinese governments to combat modern day slavery, as well as the current criminal sentencing guidelines these countries employ. Further, this paper will examine the theories of criminal punishment, taking a specific interest in the deterrence theory of tort law as a method that can be used to deter offenders and possible future offenders from engaging in such heinous crimes against society.
By focusing on the economic principles that fuel human trafficking, such as low-risk, high-reward; systemic inequalities; and supply and demand, this paper stresses the importance that legislatures, government officials, and country leaders across the globe take an assertive approach in not only enacting legislation that enhances criminal punishments for those who engage in the trafficking of persons, but also enforcing the provisions that are established within the legislation to reduce the overall demand for human exploitation. Lastly, this paper emphasizes the need to reduce at-risk victims\u27 level of vulnerability of exploitation
The American Experience with Employee Noncompete Clauses: Constraints on Employees Flourish and Do Real Damage in the Land of Economic Liberty
Get PDFAgreements not to compete are generally an anathema to free market advocates. Independent profit maximization is one of the fundamental assumptions of the neoclassical economic model and necessary to its conclusion that markets yield results that are Paraeto efficient. Consistent with this theory, and practical experience, agreements among competitors, or potential competitors, to divide a market, or fix price or quantity are per se violations under our antitrust laws.Despite this fact, even some ardent free market advocates have argued on behalf of the enforcement of covenants not to compete in the employment relationship. The traditional economic argument in favor of enforcing non-competes assumes that labor markets are competitive and workers freely enter into such agreements in return for higher wages associated with work in research on behalf of the employer and/or access to employer developed trade secrets and customer contacts. This arrangement is desirable to the employer because it helps protect his or her investment in research, trade secrets, and customer contacts, against appropriation if the employee were to leave to work for a competitor. It is argued that society also benefits from such arrangements because the increase to production from the employer’s investment in research and customer contacts would more than make up for societal losses due to the constraints on the employee’s labor mobility.However, economic theory also embraces a more sinister view of such agreements. Given their constraints on labor mobility, there is a natural concern that employers might use non-competes to limit labor market competition and perhaps product market competition. Recent discussions of labor market monopsony power have cited the potential role of non-competes in extending employer power by creating “market friction” that prevents employees from selling their labor to the highest valued use. Under this view, the covenant not only allows the employer to pay the employee less than a competitive wage, but also raises the recruiting costs of the employer’s competitors, allowing the employer to charge higher prices. Concern about covenants not to compete is particularly acute when they are imposed on employees after acceptance of an offer of employment, clearly challenging the assumption that they are freely accepted in return for higher wages. In such cases a covenant not to compete can serve as an intertemporal conduit of monopsony power, translating the employee’s short-term disadvantage in the lack of an alternative offer into long-term employer monopsony power. Viewed in this light, a covenant not to compete is a socially costly restraint on the employee’s freedom to apply his or her labor to the highest valued use and receive a competitive wage.Which of these two economic views of employee covenants not to compete is true, and under what circumstances, is an empirical question. The answer to this question can be very useful in helping us determine whether such agreements should be enforceable, and, if so, under what circumstances. This is a question of growing importance as the use of covenants not to compete has grown in our economy. Once largely confined to the instances incident to the sale of a business or involving highly compensated managers, professionals or research staff, the use of covenants not to compete has spread across the American economy until by the most recent count they cover 20% of American employees including many low-skill positions without access to sensitive information such as a hair stylist, yoga instructor, lawn sprayer, temporary warehouseman, sandwich-maker, dog-walker and even volunteer camp counselor and unpaid intern. Moreover, it seems that few of these covenants not to compete are the result of bargained for exchange and many are imposed by the employer after the job has been accepted and without additional compensation. The sheer number of these agreements and the potentially deleterious impact they might have on peoples’ careers, our labor market and our economy have brought this question to a head and provided impetus for possible remedial legislation at both the state and federal levels. Fortunately, there are a number of very good empirical studies that examine the number and circumstance of such agreements and the impact of these agreements on the workers, firms and our economy.In this article, we examine the American experience with employee covenants not to compete. We discuss first their treatment under the common law and statutes codifying the common law. Next, we review the recent empirical literature and discuss its findings with respect to the current state of the phenomenon of covenants not to compete in the American workforce and their impact on the affected workers, firms and the economy as a whole. Based on this empirical work we conclude that covenants not to compete are over-used in the American economy having a deleterious effect on employee wages and mobility and the vibrancy of our economy, with no comparable increase in employer investment in research or training. Thus, we find that, for the vast majority of employees, the negative economic view of covenants not to compete is more accurate and such agreements are used to extend employer control over the employees and in some cases extend employer monopsony power. Employers also lose out due to covenants not to compete because they have become an obstacle to hiring qualified staff. Finally, we discuss efforts at the state and federal level to regulate the use of non-competes to ameliorate the abuse and problems of these restrictions. We examine these legislative efforts and evaluate them in light of the recent empirical work on the problems caused by non-competes
Delusions, Moral Incapacity, and the Case for Moral Wrongfulness
Get PDFResponsibility is a legal—not medical—construct. However, science can be useful in exposing faulty assumptions underlying current doctrine or practice, illuminating changes in practice or evidentiary standards to better effectuate the law’s animating purpose, and even suggesting updates to legal standards to account for modern understandings of functionalities of concern. This Article uses the science of delusions to assess the law regarding, and practice of establishing, criminal irresponsibility for defendants with psychosis. Over the last two decades, researchers from the cognitive sciences have compiled strong evidence that a host of cognitive and emotional impairments contribute to the origin and maintenance of delusions by impairing decision-making. This Article uses insights from those literatures to make three contributions. First, it analyzes current insanity standards and demonstrates their intimate relationship with rationality. It then argues that courts should consider evidence of any significant reasoning impairment, whether cognitive or emotional, as probative to sanity. Second, the Article explains how the reasoning impairments associated with delusions should bear upon assessments of a defendant’s incapacity to know, or ignorance of, the wrongfulness of her criminal act. In assessing the latter, the Article argues that scientific research exposes as misguided the traditional rule expressed in M’Naghten’s Case—which is currently followed to varying extents by nine jurisdictions—that a delusional defendant lacked knowledge of her act’s wrongfulness only if her delusion, if true, would have justified or excused her act. Instead, the science exposes the strict legal wrongfulness standard as inappropriate for populations with delusions and suggests that courts should consider excusing defendants whose delusions cohere with the general thrust or gist of a legal defense
The Abortion Paradox: How States Fail to Reconcile Their Parens Patriae Duty to Protect Minors with the Lack of Sexual Assault and Incest Exceptions in Stringent Abortion Regulations
Get PDFCompelled Disclosure and the Workplace Rights it Enables
Get PDFWorker and consumer protection laws often rely on the regulated entity to notify workers or consumers of their legal rights because it is effective and efficient to provide information at the time and place where it is most likely to be useful. Until the Supreme Court ruled in NIFLA v. Becerra in 2018 that a California law regulating crisis pregnancy centers was an unconstitutional speaker-based, contentdiscriminatory regulation of speech, mandatory disclosure laws were constitutionally uncontroversial economic regulation. Yet, the day after striking down a disclosure law in NIFLA, the Court in Janus v. AFSCME Council 31 expanded the right of workers to resist supporting unions, a right that depends on an even more intrusive compelled notice regime than the one the Court struck down in NIFLA. When the Court found a First Amendment right not to disclose on one day and a First Amendment right to receive information based on a system of mandatory disclosure on the next, it revealed that treating disclosure rules as compelled speech inevitably requires the Court to pick sides in fights involving free speech or other rights claims on both sides. This essay argues that compulsory notice or disclosure laws are not constitutionally problematic when and insofar as they require statements of fact or statements of policy that are unambiguously labeled as speech of the government rather than the views of the speaker
Civil Society and Regional Human Rights Development in Asia: Lessons from the Asian Human Rights Court Simulation
Get PDFIn 2019, the historic first hearing of the Asian Human Rights Court Simulation (AHRCS and its Court\u27) took place in Taipei, Taiwan. The Court heard the case of Chiou Ho-shun v. ROC (Taiwan). The judges of the AHRCS consisted of experts in international human rights law; and observers from the media, scholars, government officials, and national and international human rights defenders were in attendance. Along with the hearings, the event included workshops on international human rights topics and a civil society dialogue. This article discusses issues surrounding the development, ecosystem, and future of the Court. The article first discusses the Asian perspective on human rights and the regionalization of human rights. The article then discusses the role of the AHRCS and the case of Chiou Ho-shun v. ROC (Taiwan). Importantly, the article discusses the role of civil society participation in the AHRCS and concludes with recommendations regarding an AHRCS Civil Society Organization Coordinator and a Special Rapporteur for follow-up matters
The \u27Impractical and Anomalous\u27 Consequences of Territorial Inequity
Get PDFLocated in the South Pacific Ocean, American Samoa is one of five populated “unincorporated territories” of the United States. It is unique, though, as those born there are not recognized as American citizens at birth and instead are deemed “noncitizen U.S. nationals.” They enjoy some, but not all, constitutional protections. Two federal appellate courts—the D.C. Circuit (in 2015) and the Tenth Circuit (in 2021)—have ruled that this classification does not violate the Fourteenth Amendment’s Citizenship Clause. Both courts have stated that it would be “impractical” and “anomalous” to extend birthright citizenship to the American Samoan community.
Drawing upon a powerful dissent in the Tenth Circuit case, this Article argues that what is actually “impractical” and “anomalous” is excluding American Samoans from this constitutional entitlement. However, there is also a crucial administrative basis for supporting this claim, which to date has received scant attention. For three decades, beginning in 1947, the Board of Immigration Appeals (BIA)—the top court in the immigration court system—delivered a series of precedent-setting judgments that gradually expanded the rights of American Samoans. These decisions were issued namely as a way of curing what otherwise would have been impractical, anomalous, and unjust actions taken by the government. This finding is especially noteworthy given that the BIA has generally been viewed as hostile to noncitizens.
One theory for why the BIA sided with these “discrete and insular” claimants is that the agency’s expertise was not as vulnerable to external pressure then as it is today. Assuming that these cases were decided more squarely on the merits, this Article suggests that it may be worthwhile for the federal courts to consider them when reflecting on whether American Samoans are indeed birthright citizens