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Consumer Law’s Equity Gap
Get PDFThis Article is about the views that shape and constrain the development of consumer law. Consider the market for short-term, highcost loans. Policymakers tend to justify intervening in these markets on inefficiency grounds (consumers exhibit present bias) and rarely on equitable grounds (these loans cost too much). Why? One recent explanation suggests that policymakers may focus on inefficiency because they believe access to credit is essential for social and economic development. In this Article, I offer an alternative explanation. The lack of equity in consumer law is not just a function of narrow conceptions internal to consumer law but the external view that the law should prioritize efficiency and ignore equity. The dominant rationale for this view is that redistribution through legal rules distorts economic behavior more than redistribution through an income tax. Here, I discuss the longstanding and recent critiques of this rationale and build on those critiques to show why it is a fundamental mistake to ignore distribution in consumer law. In particular, background legal rules shape consumer demand in individual markets. These background conditions may mean that seemingly irrational exchanges are, in fact, rational. An approach tethered to consumer preferences may struggle to justify altering the terms of rational exchanges. To overcome this problem, I suggest that we center distribution in the way we justify interventions and conceptualize solutions to problems in consumer financial markets. I detail what centering distribution in consumer law might look like and conclude by considering some objections to redistributive policies in consumer law
Emergency Use Authorizations in the Time of Coronavirus
Get PDFWhen COVID-19 first emerged in the United States, the pandemic sparked a rush to provide protective gear, develop tests to detect the disease, and implement effective containment strategies to stop the spread. The Food and Drug Administration (FDA) used its Emergency Use Authorization (EUA) process to facilitate the rapid market introduction of medical devices (authorized but unapproved) to combat the emergent public health threat. Unfortunately, performance problems with some medical devices stymied initial containment efforts, arguably resulting in greater spread and suggesting a need for improvement in the EUA process.
By reviewing the statutory requirements of the EUA process, this Note examines how the process is intended to function and where it came up short during the COVID-19 pandemic. The Note then identifies the medical devices (diagnostic tests and personal protective equipment) that are most likely to require EUAs during a potential future pandemic and reveals a regulatory gap in quality control procedures that enabled nonperforming devices to reach the market during the current pandemic. Finally, the Note proposes a solution that would likely fill this regulatory gap and help the FDA achieve its goals in the event of another infectious disease emergency. The solution is to require an independent test of the manufactured product to ensure it meets its performance specifications before releasing the medical device to the market
“Categorically Unsafe” to Donate
Get PDFPlasma donation centers routinely adopt policies that preclude individuals with mental illnesses from donating blood plasma. While plasma donation centers assert that their policies are motivated by employee and customer safety, such safety concerns are unsubstantiated. These policies are based on speculation and stereotypes, rather than scientific evidence. But discrimination against people with mental illness is only unlawful if perpetrated by an entity subject to the Americans with Disabilities Act (“ADA”), and circuit courts are split on whether blood plasma donation centers fall within the ADA’s parameters. In 2016, the Tenth Circuit held that blood plasma donation centers are “service establishments” under Title III of the ADA but, two years later, the Fifth Circuit held the opposite. In 2019, the Third Circuit weighed in, agreeing with the Tenth Circuit.
This Note argues that the Fifth Circuit’s holding is unpersuasive, and that blood plasma donation centers should constitute “service establishments” under the ADA. Accordingly, this Note argues for the finding that, when blood plasma donation centers discriminate against individuals with mental illness, the centers are violating the ADA. This Note begins with a discussion of blood plasma donation facilities and the ADA. Next, it summarizes the three Circuit Court cases in question. This Note then proposes three reasons why plasma donation centers are ADA “service establishments”: first, the Department of Justice (“DOJ”), an agency tasked with enforcing the ADA, itself interprets “service establishments” as including plasma donation centers, and the DOJ’s interpretation warrants deference; second, the Fifth Circuit did not adequately respond to the plaintiff’s statutory purpose argument; third, for compelling policy reasons, courts should be motivated to find that plasma collection centers are “service establishments,” namely, to diminish public stigma and the harmful effects that flow therefrom, and to show those with mental illnesses the respect and dignity that they are owed
Stewardship Theater
Get PDFLarge asset managers like BlackRock and Vanguard have amassed staggering equity holdings. The voting rights that accompany these holdings give them enormous power over many of the world’s largest companies. This unprecedented concentration of influence in a small group of financial intermediaries is a pressing policy concern. While law and finance literature on the topic has recently exploded, no one has offered a satisfying theory to explain their voting behavior. Existing work tries to understand their approach to voting in conventional terms—as an attempt to improve the performance of portfolio firms—but this is not why large asset managers vote the way they do.
In contrast, this Article offers a political theory of asset-manager voting. Because of the power they wield, and the high stakes involved, large asset managers risk severe political blowback from looking like reluctant participants in corporate governance and from voting counter to the views of powerful politicians. As a result, politics rather than finance drives their decisions.
Politically motivated asset-manager voting is problematic. It leads to market uncertainty and threatens the core division between business and government. It is also an illegitimate use of the voting power that asset managers are duty-bound to exercise on behalf of the shareholders in the funds that they oversee. But voting authority is a privilege not a right. To draw politics out of corporate governance, regulators should require that asset managers seek input from fund shareholders and reflect that input in their votes
Miscarriage of Justice: Early Pregnancy Loss and the Limits of U.S. Employment Law
Get PDFThis Article explores judicial responses to miscarriage under federal employment law in the United States. Miscarriage is an incredibly common experience. Of confirmed pregnancies, about fifteen percent will end in miscarriage; almost half of all women who have given birth have suffered a miscarriage. Yet this experience slips through the cracks of every major federal employment law in the United States.
The Pregnancy Discrimination Act of 1978, for example, defines sex discrimination to include discrimination on the basis of pregnancy, childbirth, or related medical conditions. The Family and Medical Leave Act of 1993 requires covered employers to provide employees with job-protected, unpaid leave for personal or family illness. The Americans with Disabilities Act of 1990 mandates both nondiscrimination and reasonable accommodations for employees with disabilities. The Occupational Safety and Health Act of 1970 is supposed to ensure that American workplaces are free of recognized hazards that may cause serious physical harm to workers. However, as this Article demonstrates, none of these laws clearly addresses the experience of miscarriage. Moreover, courts and agencies often refuse to interpret these statutes in obvious and reasonable ways to provide meaningful equality to workers when they suffer the common experience of miscarriage.
Many scholars have examined the limitations of employment law with regard to pregnancy. This Article is the first to comprehensively examine this problem as it specifically relates to miscarriage. In addition to bringing attention to this important issue, which silently affects so many workers, this Article provides an opportunity to challenge the artificial conceptual separation of employment and health law, as well as to consider the problem of pregnancy discrimination through the broader lens of reproductive justice
Ending Law Review Link Rot: A Plea for Adopting DOI
Get PDFAs librarians, we do a fair amount of research online for ourselves and the faculty and students we serve. As researchers, we know that there is nothing more frustrating than encountering a dead link to a much-needed article, particularly when there are deadlines to meet. Dead links (link/ reference rot) can be a particularly frequent occurrence for law review articles because the law review societies that publish them have not yet adopted standards for preserving online access to them, particularly the adoption of a standard for implementing persistent URLs.
This Practical Insight is a plea to law reviews and law librarians who manage law review content to adopt the DOI, or Digital Object Identifier standard. A brief description of DOI will be provided, followed by instructions for minting a DOI and integrating DOI URLs into the metadata record of a law review article
The Democratic (Il)legitimacy of Assembly-Line Litigation
Get PDFIn response to Daniel Wilf-Townsend’s Assembly-Line Plaintiffs we take a panoramic picture of state civil courts, and debt cases in particular, and name specific features of the courts that must be taken into account in crafting reform prescriptions. In doing so, we question both the democratic legitimacy of debt collection courts and the adequacy of incremental reform that targets the structure of litigation. Part I contributes two critical components to Wilf-Townsend’s rich description of consumer debt cases: pervasive intersectional inequality among pro se defendants and a record of fraud among top filers. We add a sharper focus on the racial, gender, and class dynamics of civil courts, which play an outsized role in state civil justice dysfunction and have normative implications for institutional design solutions. In addition, we enhance Wilf-Townsend’s depiction of assembly-line plaintiffs by documenting pervasive fraud on the part of assembly-line plaintiffs as germane to the operation of civil courts. The clustering of corporate entities in state civil courts tells part of the story; the fraudulent conduct of plaintiffs in debt cases also plays a significant role in exacerbating poverty and inequity for marginalized groups in civil courts. Part II positions Wilf-Townsend’s proposal to restructure debt proceedings into agency-style adjudication as a form of problem-solving courts, which have an established history in the U.S. justice system. We place his proposal within the larger literature on active and suggest that Wilf-Townsend sets forth a first step toward reimagining state civil courts. Part III draws on an invest/divest framework to set forth a broader and more aspirational vision of reform. We propose that bold reform would focus on reestablishing the democratic legitimacy of state civil courts by increasing social provision to defendants economically ravished by assembly-line litigation and also by keeping courts squarely in the business of resolving two-party adversarial disputes
A Unified Theory of Clean Water Act Jurisdiction
Get PDFAs it reaches its half century mark, the modern version of the federal Clean Water Act (CWA) remains a definitional quagmire. The U.S. Supreme Court, lower courts, and the two federal agencies charged with implementing the law have struggled to interpret its scope ever since its 1972 enactment. As a result, we still lack clarity regarding the most basic questions about the law’s reach. That causes massive uncertainty for regulated businesses and landowners, the federal and state agencies that implement the law, and members of the public Congress intended to protect. A unified interpretive approach focuses on the statutory text and its stated goals, considering the whole statute in context rather than individual terms construed in isolation. This analysis negates the inappropriate assumption that Congress was simply sloppy in its use of multiple terms to define the scope of various CWA programs. Rather, Congress adopted a nested set of scope terms to apply to different statutory provisions and purposes rather than a single definition applicable throughout the statute. Under this analysis, the CWA is not as limited by the concept of navigability as the Supreme Court has suggested in some cases. Read in the context of the whole statute, the term “navigable waters” extends beyond the traditional notion of navigability as reflected in cases such as The Daniel Ball. In the CWA, Congress designed multiple strategies, to be implemented by varying players, to achieve the broad and ambitious statutory objective and goals. The definitional terms applicable to each program, therefore, should be construed to effectuate the statutory goals Congress articulated for those programs in the text and structure of the whole statute
Proposed Allocation of Funding from the American Rescue Plan Act, Infrastructure Investment and Jobs Act, and Build Back Better Act
Get PDFThe initiative on Universal Access to Clean Water for Tribal Communities strongly supports IHS’s efforts to provide clean water access and sanitation services to Tribal communities and applauds the new funding available through the Infrastructure Investment and Jobs Act. We appreciate the thoughtful approach that IHS is taking to the allocation of this funding. We want to emphasize the need to deploy this unprecedented capital infusion in a manner tailored to the specific needs of individual Tribes, in consultation with them, and in a manner that sets both the Tribes and the projects up for long term success
A Brown Buffalo’s Observations on Color (Blindness), Legal History, and Racial Justice in the Rocky Mountain West
Get PDFThis Essay is a series of observations about interrogating and complicating the meaning of color for all of us who call the Rocky Mountain West home. These observations are divided into three sections. First, in Part II, I explore what has long been the defining feature of race relations in the Rocky Mountain West—the persistent tension between the region as a racial utopia free from de jure racial inequities and the legacy of state-sanctioned racial violence and deep-rooted nurturing of White supremacy. Trekking through some of the legalscapes of property, state constitutional, civil rights, and martial law, this section spotlights the legal creation and negotiation of color lines across the region’s multi-racial geography.
Part III connects this history to the present day, detailing some of the ways that the region continues to struggle with and be in tension with its ability to confront forthrightly deep-rooted racial inequities. The section begins by situating the analysis within the racial reckonings of 2020 and the backlash against Critical Race Theory in K-12 public education that followed in 2021. I examine the lessons of those tensions by detailing the political and legal reaction to the death of Elijah McClain after being detained by the Aurora, Colorado Police Department in August 2019. Understanding this tragedy as part of a larger history of colorblindness demonstrates the legacies as well as challenges of racial disparity and inequity in the current geography of the Rocky Mountain West.
I conclude in Part IV by offering some brief observations on the legal, moral, and professional needs for all of us, as practitioners and human beings, to become color conscious as we live, learn, work, and pray in the Rocky Mountain West