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Don’t Forget to Like, Follow, and Regulate: An Argument for the Expansion of Protections for Child Social Media Influencers
Get PDFChild social media influencers, colloquially known as “kidfluencers,” have skyrocketed to fame alongside the growth of social media. However, traditional child labor laws do not consider online influencing “work” or these kids to be “child performers.” Thus, these children do not receive any form of legal protection for their presence online, leaving them open to exploitation and severe harms. This Note explores the lack of protection provided to kidfluencers, ultimately proposing a new federal labor law to expand child actor protections to kidfluencers. Part I of this Note provides a brief history of the landscape by reviewing landmark Supreme Court cases on the rights of the child, detailing the introduction of child labor laws and child actor protections, and surveying the meteoric rise of social media and “family vlogging” in the field of child labor. Part II explores the potential harms that kidfluencers could face due to the lack of regulation in the “family vlogging” field. Part III proposes a reform for the current legal schema to protect child influencers, ultimately culminating in a new federal labor law expanding current protections to protect child actors and introducing a privacy aspect to preserve children’s right to consent
Achieving True Strict Product Liability (But Not For Plaintiffs With Fault)
Get PDFUnder modern tort law, the “strict” product liability cause of action does not impose true strict liability (liability without fault). This Article suggests that this counterintuitive development is not the byproduct of a policy choice. Instead, an unresolved doctrinal difficulty is responsible for the modern requirement that a plaintiff prove fault before winning on a “strict” product liability claim. The doctrinal difficulty is this: How can tort law impose liability on faultless product manufacturers while simultaneously preventing plaintiffs with fault from being able to recover under a true strict liability standard? This Article posits that both results are desirable—true strict product liability, but not for plaintiffs with fault—but that it is analytically difficult to assemble tort doctrine to get both results. Without a doctrinal solution that allows for both results, courts have (mostly) retreated from a true strict product liability standard. This Article offers a simple solution to this analytical/doctrinal riddle: Restoring the strict product liability cause of action such that it truly imposes liability without fault, while allowing defendants a contributory negligence (flat-bar) defense to this strict liability claim. Under this doctrinal change, plaintiffs without fault would be able to recover from manufacturers on a true strict product liability claim. Plaintiffs with fault, however, would be forced to pursue a negligence claim, meaning that their ability to recover would require them to show that the defendant also had fault. This doctrinal fix uses tools and concepts already familiar to modern tort law and is thus easily achievable. In fact, all that is necessary to effectuate this result is a simple, minor change to the current comparative fault jury instructions used in most jurisdictions
Reimagining the Deduction for Employee Compensation
Get PDFU.S. businesses pay trillions of dollars in employee compensation, a substantial fraction of which is deductible for tax purposes. This deduction reduces the taxable income of businesses, ultimately lowering business tax burdens by hundreds of billions of dollars. With a few exceptions, the tax code confers the same deduction to a business for every dollar of employee compensation, regardless of whether that compensation goes to an employee earning millions or an employee earning minimum wage. This is consistent with a pure Haig-Simons income tax, under which any business expense incurred ought to be deductible dollar-for-dollar. But many, if not most, tax policy objectives are inconsistent with a pure income tax, and the U.S. tax code is accordingly replete with substantial deviations from a pure income tax.
This Article considers what would happen if the deduction for employee compensation also deviated from a pure income tax. It finds that allowing employers larger deductions for compensation paid to low-wage workers would counteract persistent deficiencies in the U.S. labor market. A larger deduction for low-wage workers would incentivize businesses to both hire more low-wage workers and pay them more. This would decrease the number of workers earning paltry wages, reverse the decline in U.S. labor force participation, restrain the employer market power exerted in many local labor markets, and correct the negative externalities from low-wage work.
As part of its analysis, this Article considers how a larger deduction for low-wage compensation might be funded, focusing on funding sources that synergize with a larger compensation deduction for low-wage workers—including higher business tax rates and smaller deductions for high-wage workers—and it details the tradeoffs associated with these different policy options. This Article also explains why behavioral frictions may make an employer-side subsidy a more effective labor market intervention than an employee-side subsidy, such as the earned income tax credit (EITC)
The Art of the Review
Get PDFWhat’s a book review for?
You might think it’s to supply a summary of the book. Time is short. We’re drowning in stuff to read; it’s hard to keep up even if you dutifully apply the seat of your pants to the seat of your chair and read very fast. Courts are constantly publishing new opinions. And—even though you’re used to this familiar feature of American law, you should still notice how startling it is—they’re also publishing unpublished opinions, with indefensible rules about whether or how they count as precedents lawyers can cite. Legislatures are publishing floor debates, not to mention committee hearings, and passing new statutes, the latter apparently written by Bulgarian bureaucrats struggling in their fifth semester of English as a second language. Don’t get me started on what the agencies are up to. (Quick! how many pages were added to the Federal Register while you read this paragraph?) Especially if you fear that some books should have been articles and that most law review articles are too long, you can be forgiven for basking in deep and abiding gratitude to the reviewer who boils things down. If you’re the tiniest bit unscrupulous, you can then pretend to have read the book yourself. You can even cite it, though I hope you have enough of a scholarly conscience left to feel uneasy about that morsel of cheating. (I hope too that “scholarly conscience” is not an oxymoron.) And you can be baffled or annoyed—I am—by the kinds of “reviews” that sometimes appear in, oh, The New York Review of Books and the Times Literary Supplement, where the ostensible reviewer can barely be bothered to mention the book she’s allegedly reviewing, but just wants to tell you what she would have said had she written a book on the topic
Can Informed Consent Solve AI Bias?
Get PDFArtificial intelligence (AI) is moving increasingly rapidly into health care (as indeed into everything else). But it has problems there (as indeed everywhere else!). What’s to be done, in particular, about the deeply embedded biases along racial and other lines that permeate the whole world of health and, as such, are likely to be encoded in AI?
Khiara Bridges gives an answer that seems mild but carries roots of revolution. In Race in the Machine: Racial Disparities in Health and Medical AI, she argues that informed consent is a key lever to pull in fighting these racial disparities. But not because informed consent—at present, mostly a formality, a begrudging nod to autonomy—will fix the problem in its current state. Instead, Bridges argues, informed consent, beefed up and focused on conveying the brutal truth about encoded racial disparities, can form the foundation for revolutionary social changes in health care, health, and beyond. Curious? Read on
The First New Deal: Planning, Market Coordination, and the National Industrial Recovery Act of 1933
Get PDFIn 1933, four years into the Great Depression, Congress enacted the National Industrial Recovery Act (NIRA) in close cooperation with the Roosevelt administration. The central action of the statute was to facilitate price coordination across a given market or industry. Its rationale was to contain the destructive competition and below-cost pricing that were exacerbating the problems already roiling the economy as a result of the initial stock market crash, and subsequent cascading credit and liquidity crises. In addition to addressing the credit crisis directly through banking and monetary reform, the Roosevelt administration thus sought to buoy up purchasing power by stabilizing prices. NIRA also systematized and federalized the existing patchwork of legal support for collective bargaining between workers and business firms, in an effort to stimulate and stabilize wages. The idea of boosting demand and ultimately production through a floor on wages was not new; it had had currency for decades thanks to the influence of institutionalist economists, policymakers, and many business leaders. Still, NIRA at that time represented the most ambitious and broad-ranging effort to put that idea into practice.
In discussions of economic law and policy today, the “First New Deal” is understood as a major experiment in “planning” that displaced “markets.” This characterization is broadly endorsed by mainstream antitrusters, legal progressives, socialists, and most others too. Beyond that point of convergence, the normative valence attached to each—as well as the political meaning of “planning” within a broader political project—diverges, with some endorsing “markets” over “planning” or vice versa, and with some seeing “planning” as key to a broad emancipatory project, and others seeing it as simply a backstop for the continuation of a fundamentally inegalitarian economic system. What these often bitterly divergent viewpoints have in common, though, is a failure to grasp just how intrinsic the activity of economic planning is to markets themselves. This is not in the mere sense of bare-bones public and legal market management mechanisms (such as contracts and property law), though indeed those mechanisms frequently enable significant degrees of economic planning that obviously displace competition (think for example of long-term output or requirements contracts). In Patrick Atiyah’s magisterial history of English contract law, he suggested that a major reason for the rise of contract law in the nineteenth century, and specifically for the modern emphasis on the will of the parties and on expectation damages, was that the legal form facilitated economic planning—and economic planning was necessary for the growth of markets and capitalism