Law Commons^™

Bizarre Love Triangle: The Spending Clause, Section 1983, And Medicaid Entitlements, Nicole Huberfeld

Law Faculty Scholarly Articles

The first two terms of the Roberts Court signal a willingness to revisit precedent, even decisions that have been considered long-settled, and the United States Supreme Court may be ready to reinterpret another area of jurisprudence: the private enforcement of conditions on federal spending against states through actions under 42 U.S.C. § 1983. The most recent pre-Roberts Court precedent is Gonzaga University v. Doe, a 2002 decision that made it more difficult for individuals harmed by violations of federal laws to enforce rights through § 1983 actions. Federal courts have inconsistently and confusingly applied the Gonzaga framework, but the …

Agency: The Internal Split Of Structure, Yong Wang

Department of Sociology Faculty Scholarship and Creative Works

In this article I first examine the ways in which the dual terms of structure and agency are used in sociological theories. Then, relying on Lacan’s notions of split‐subject, the formula of sexuation, and forms of discourses, and Laclau’s theory of ideological hegemony, I argue that agency in most current sociological formulations is but a posited other of the structure that dissolves if examined closely; it is similar to the Lacanian fantasmic object. To resolve the fundamental paradoxes in structure‐agency theories, I reformulate structures as paradoxical, incomplete, and contingent symbolic formations that are always partial and unstable due to their …

Listings, Leases, And Liabilities, Roger Bernhardt

Publications

This article discusses the California case Blickman Turkus v. MF Downtown Sunnyvale which could have been a rich source of guidance as to brokers’ commissions, disclosure duties, confidential communications, and agency, but instead focused on pleading issues.

The Disappearing Dilemma: Why Agency Principles Should Now Take Center Stage In Retaliation Cases, Sandra F. Sperino

Faculty Articles and Other Publications

In Burlington Northern Santa Fe Railroad v. White, the Supreme Court soundly rejected the idea that the plaintiff must establish that conduct rose to the level of an adverse employment action to constitute retaliation under Title VII. This Article posits that, in an effort to square Burlington with other Title VII agency jurisprudence, the courts will be required to re-import the concept of tangible employment action into decisions regarding whether an employer is vicariously liable for actions committed by supervisors.

While the lower courts appear to recognize that agency issues come into play when retaliation is conducted by co-workers, …

Corporate Ethics, Agency, And The Theory Of The Firm, Robert J. Rhee

Faculty Scholarship

This conference paper suggests that the problem of corporate ethics cannot be reduced to the autonomous person. Although the greatest influence on action and choice is one's moral constitution, it does not follow that the agent's behavior is the same within or without the firm. Ethics is a function of corporate form. The theory of agency cannot dismiss the firm as a fiction or metaphorical shorthand since that which does not exist should not be able to cause ethical breakdowns in corporate action. Thus, the theory of the firm, which emphasizes profit and wealth maximization, should incorporate a richer, more …

In Good Times And In Debt: The Evolution Of Marital Agency And The Meaning Of Marriage, Marie T. Reilly

Journal Articles

A married person sometimes acts solely for herself and at other times on behalf of her spouse. If she incurs debt solely for herself, then only she is liable to the creditor. If, however, she incurs debt both for herself and on behalf of her spouse, both are liable – the debtor directly and the spouse indirectly by imputed liability. Before married women’s property reform, imputed marital liability followed from marital status. As marriage changed to recognize the legal individuality of both spouses, so too did the scope of a spouse’s imputed liability for the debts of the other spouse. …

The Transformation Of The U.S. Rulemaking Process - For Better Or Worse, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.

License To Harass: Holding Defendants Accountable For Retaining Recidivist Harassers, Kerri Lynn Stone

Faculty Publications

Harassment victims who suffer a "tangible employment action," which the Supreme Court defines as a "significant change in employment status such as hiring, firing, failure to promote, reassignment, or a decision causing a significant change in benefits," enjoy unfettered recourse when they sue their employers. However, victims who do not endure what a court will deem a "tangible employment action" will have their prima facie case of harassment then rendered vulnerable to the interposition of an affirmative defense by a defendant-employer, who will escape liability if it can show "(a) that the employer exercised reasonable care to prevent and correct …

For Whom The Tel Tolls: Can State Tax And Expenditure Limits Effectively Reduce Spending?, Thad Kousser, Mathew D. Mccubbins, Ellen Moule

Faculty Scholarship

Can voters stop state governments from spending at high rates through the enactment of tax and expenditure limits (TELs), or do these laws become dead letters? We draw upon the principal-agent literature to theorize that TELs – one of the most frequent uses of the initiative process across the country – may be circumvented by the sorts of elected officials who would inspire their passage.

In order to investigate our claim, we conduct an event study. First, we test for the effectiveness of TELs across states using a differences-in-differences model. Second, we dissect our treatment variable using different legal provisions …

Corporate Ethics, Agency, And The Theory Of The Firm, Robert J. Rhee

UF Law Faculty Publications

This conference paper suggests that the problem of corporate ethics cannot be reduced to the autonomous person. Although the greatest influence on action and choice is one's moral constitution, it does not follow that the agent's behavior is the same within or without the firm. Ethics is a function of corporate form. The theory of agency cannot dismiss the firm as a fiction or metaphorical shorthand since that which does not exist should not be able to cause ethical breakdowns in corporate action. Thus, the theory of the firm, which emphasizes profit and wealth maximization, should incorporate a richer, more …