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Fintech\u27s Role in Exacerbating or Reducing the Wealth Gap
Get PDFResearch shows that Black, Latinx, and other minorities pay more for credit and banking services, and that wealth accumulation differs starkly between their households and white households. The link between debt in-equality and the wealth gap, however, remains less thoroughly explored, particularly in light of new credit products and debt-like banking services, such as early wage access and other fintech innovations. These innovations both hold the promise of reducing racial and ethnic disparities in lending and bring concerns that they may be exploited in ways that perpetuate inequality. They also come at a time when policy makers are considering how to help communities of color rebuild their wealth, presenting an opportunity to critique policy proposals. This Article leverages that opportunity by synthesizing research about the long-term costs of debt inequality on communities of color, adding an in-depth analysis of several new advances in banking and lending, and proposing several key principles for reducing debt inequality as an input to the wealth gap
Challenges and Opportunities for Engaging Unmarried Parents in Court-Ordered, Online Parenting Programs
No full textProfessor Applegate\u27s contribution to this volume is chapter 7 Challenges and Opportunities for Engaging Unmarried Parents in Court-ordered, Online Parenting Programs, co-authored by Tomlinson, Rudd, and Holtzworth-Munroe.https://www.repository.law.indiana.edu/facbooks/1251/thumbnail.jp
The Hidden Gender of Gender-Neutral Paid Parental Leave: Examining Recently-Enacted Law in the United States and Australia
Get PDFThe United States and Australia are unusual in their approach to providing paid time off to new parents. Virtually every other country in the world provides maternity leaves that are far longer than paternity leaves, even if they also provide supplemental parental leave available to either parent. Recently-enacted laws in the United States and Australia, by contrast, eschew sex-specific classifications entirely. But, while both adopt gender-neutral approaches, they are structured quite differently. American laws provide each parent equal and non-transferable benefits; Australian law provides an extended period of benefits to a “primary” caregiver, and a much shorter period of benefits to a “secondary” caregiver.
This Article shows how these distinct approaches to gender-neutral leave relate to the countries’ pre-existing laws addressing unpaid leave rights and to doctrinal and theoretical debates regarding what equality means in the context of pregnancy and childbirth. American law generally requires formal equality between men and women, while Australian law permits special accommodations for mothers.
Early data suggests the approach used in America is effective at encouraging men to claim benefits. In some states, men account for almost 40% of parental leave claims, a rate that approaches international leaders such as Sweden and Norway. In Australia, by contrast, women claim the vast majority of leave. The Article reviews available data and suggests explanatory factors for future empirical study, including the possible gendered effects of gender-neutral leave policies that require a single person be designated as the primary caregiver
I Wish There Was a Treaty We Could Sign : An Inquiry into the Making of the Global Pact for the Environment
Get PDFThis article provides ethnographic insights into the making of the latest UN-backed instrument for transnational environmental law and governance: the Global Pact for the Environment (GPE). It narrates the rise and fall of a contemporary policy project designed to unify and strengthen international environmental law. The story starts in 2015 on the premises of a Parisian legal think tank and ends in May 2019 at the headquarters of the United Nations Environment Programme in Nairobi, where states ultimately decided not to adopt the GPE as a legally binding instrument but opted to prepare apolitical declaration to be presented in 2022 at the occasion of the 50th anniversary of the UN Conference on the Human Environment. The time between 2015 and 2019 is divided in two periods. From 2015 to 2017, the GPE was imagined, drafted, and promoted by a group of non-state actors mainly constituted by legal academics. From 2017 to 2019, the GPE was introduced in the UN machinery and turned into a state-oriented policy process. Based on original interview material and an unexplored archive of primary sources, the article traces the multiplicity of actants enrolled in the GPE, the interests that held them together, and the institutional ties they built for the project to materialize. It draws on actor-network theory\u27s model of translation through problematization, interessement, enrolment, and mobilization--to reassemble the bonds between human and nonhuman actants in the making of the global, the pact, and the environment. The account sheds light on the informal processes and the relational and agential dynamics at play in this laboratory of transnational environmental lawmaking, thereby illuminating and questioning the politics of policy-entrepreneurship and consensus-building--the tenuous and fragile modes of existence that mark contemporary international law
Feminist Scripts for Punishment
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THE FEMINIST WAR ON CRIME: THE UNEXPECTED ROLE OF WOMEN’S LIBERATION IN MASS INCARCERATION. By Aya Gruber. Oakland, C.A.: University of California Press. 2020. Pp. xii, 288. $29.95
Tort Immunity in the Pandemic
Get PDFThe Covid-19 pandemic set off a public health emergency that quickly brought doctors and other health care providers to the front line, while shuttering businesses throughout the United States. In response to the emergency, the federal and state governments rapidly created broad protections from tort liability for health care providers. To encourage businesses to reopen, some states have also provided liability protection for businesses from personal injury suits brought by patrons and employees. Congress is considering similar protections for businesses as it contemplates further aid packages. Some industries, like nursing homes and universities, are lobbying for specific immunity. This Essay overviews some of these liability shields, examines their relative necessity and value, and anticipates some of the issues that will inevitably arise as the provisions are implemented.
Part I briefly explains that, even without liability shields, potential plaintiffs face high hurdles under traditional common law principles to successfully bring personal injury lawsuits for Covid-19 related injuries. Proof of the elements of negligence and overcoming traditional defenses will be difficult, whether suit is brought against businesses, health care workers, or employers. These common law obstacles call into question the need for further liability protections.
That said, the strongest case for liability shields is for health care workers–those who are on the frontlines of the battle against the pandemic. Part II reviews the shields that have been promulgated for these workers both at the state and federal levels. While Part II concludes that these shields serve health care policy, it questions whether similar protections should extend to treatment of non-Covid-19 patients, as is being advocated by the American Medical Association.
Parts III and IV consider whether the need for immunity for businesses is comparable to health care workers. These Parts conclude that providing immunity to businesses is counterproductive and detracts from important values served by tort liability: Part III from the perspective of suits against employers and Part IV from the point of view of patron suits against businesses open to the public. Preliminarily, it is debatable whether immunity shields are even necessary. Lawmakers assume these shields are critical to encouraging businesses to resume normal business activities, an assumption that is not supported by the data. It is likely that other challenges facing businesses in the pandemic, such as reduced business operations to allow for social distancing or lower patronage due to public fear of exposure, may be inhibiting resumption of full business activities far more than the potential for liability. Significantly, very few personal injury lawsuits have been filed against businesses since the pandemic began in the United States
A Clumsy Couple: The Problem of Applying Model Rule 1.7 in Transactional Settings
Get PDFThe American Bar Association’s Model Rules of Professional Conduct (“Model Rules”) have long addressed conflicts of interest, with fluctuating degrees of stringency.1 For as long as the rules have been in place, legal scholars have grappled with how lawyers can work within the confines of the rules to serve their clients best, as well as how the rules might better align with what clients seek and expect from their legal representation. In their current form, the Model Rules address conflicts of interest in Rule 1.7. However, both this rule and the Model Rules more generally are not one size fits all. The Model Rules were written largely with litigators in mind, and thus applying them to transactional matters is often awkward and tenuous.2 In this Note, I will argue that Model Rule 1.7 should be amended to account for the differences in the ways that litigators and transactional attorneys should and do conceptualize conflicts of interest in their practices. Part I outlines the history of Rule 1.7 and its predecessors, and walks through Rule 1.7 and the comments as they exist today. Part II details the reasons that legal scholars argue Rule 1.7 is a valuable and necessary rule. Part III describes the incongruities between Rule 1.7’s parameters and the realities of transactional lawyering. Part IV discusses solutions that have been put forward to make up for the drawbacks of Rule 1.7 in its current iteration. Finally, Part V offers my proposed solution to the problem of applying Rule 1.7 to transactional matters: amend the rule and create subparts that pertain specifically to transactional lawyers, who have less need for a ban on conflicts of interest
Copyright Fair Use in the People\u27s Republic of China--on the Road of Development: a Comparative Copyright Analysis of Chinese and the U.S. Fair Use, and Proposals for Corresponding Legislation in China
No full textSince the enactment of the Statute of Anne, the purposes and manifestations of almost every copyright regime are the same: protecting the interests of both copyright holders and the public. Also, all copyright laws share the same spirit, functionality, and balance in order to let all competing interests co-exist in harmony and arrive at the best possible scenario.
In order to fulfill the dual purposes of copyright laws, and to strike a balance among the interests of copyright holders, users, and the public, nearly every copyright regime sets up exceptions and limitations to copyright protections. One type of copyright limitation or exception is non-infringing acts of using copyrighted works without consent and compensation. Such exceptions or limitations are named differently and adopted through varying approaches in jurisdictions, due to differing philosophical, economical, and social considerations. In China, it is custom in academia and legal practice to employ the term “fair use” to refer to this kind of copyright limitation or exception, but has nothing to do with which approaches are adopted to determine those non-infringing consent-and-compensation-free acts. This dissertation centers on the issues of Chinese fair use legislation.
The legislation governing Chinese fair use in the newly passed and effective 2020 Chinese Copyright Law has made much progress. However, problems still exist in the newly amended legislation. One such problematic area is targeted by this dissertation: Chinese fair use expansion. A true and complete Chinese fair use general catch-all clause is justified by the dual purposes and spirit of copyright law, the needs of social and technological development, and the status quo of Chinese judicial practice.
To design Chinese fair use general legislation that is aligned with international treaties, compliant with the purposes and spirit of copyright law, practical, and continuously up-to-date, this dissertation explores the three-step test and the U.S. fair use four-factor analysis. The dissertation concludes with a detailed, creative, and feasible legislative design of Chinese fair use general legislation
Proving Discrimination by the Text
Get PDFEmployment discrimination laws make the “simple but momentous” declaration that it is illegal to deny employment on the basis of race, sex, religion, or other key aspects of identity. But when employees who have been treated unfairly turn to the courts for relief, courts rarely assess whether their claims meet the statutory standard. Instead, they funnel the evidence through a convoluted body of judge-made law known as McDonnell Douglas burden shifting.
This Article lays bare fundamental inconsistencies between the statutes’ causal language, as definitively interpreted by the Supreme Court in recent cases, and the burden-shifting process. In Bostock v. Clayton County, the Court reaffirmed that the statutes require, at most, a plaintiff to prove that a protected trait made a difference in an employment decision. Under this standard, it is irrelevant whether other factors also played a role. McDonnell Douglas, by contrast, effectively requires a plaintiff to prove discriminatory bias was the only cause of an adverse action. Other aspects of the test also function as judicially-created hurdles that may be irrelevant to the ultimate question a jury would decide.
Although this doctrine can seem technical, its effects are very real. Workplace discrimination remains distressingly common, but plaintiffs are more likely to lose on summary judgment in employment cases than in other kinds of civil litigation. Often, this is because they cannot satisfy elements of the McDonnell Douglas test, even when there is ample evidence suggesting bias or harassment. Although emerging circuit case law takes steps to address some of these tensions, ultimately the Supreme Court should provide clear guidance on how modify the test to conform to the statutory language, or simply instruct courts to no longer employ McDonnell Douglas burden-shifting.
The Article also contributes to a nascent but growing literature on the progressive possibilities of textualism. While textualism has long been associated with right-leaning judges, there is nothing inherently conservative about prioritizing fidelity to statutory language. A fair reading of a progressive statute will often—and should often—advance progressive objectives. Refocusing attention on the text of antidiscrimination laws is necessary to realize their promise of equality