Law Commons^™

Employers And The Privatization Of Public Health, Sharona Hoffman

Faculty Publications

This Article focuses on the role of employers in public health and argues that they constitute increasingly important actors in the U.S. public health arena. In the aftermath of the COVID-19 pandemic, a series of judicial decisions and newly enacted statutes enfeebled the public health powers of the federal and state governments. In a 2023 statement, Supreme Court Justice Neil Gorsuch clearly articulated his antagonism towards government-initiated COVID-19 interventions, describing them as “the greatest intrusions on civil liberties in the peacetime history of this country.” All too many share his views.

Employers may be highly motivated to safeguard their workers’ …

Patient Autonomy, Public Safety, And Drivers With Cognitive Decline, Sharona Hoffman, Cassandra Burke Robertson

Faculty Publications

With a growing elderly population, cognitive decline in drivers has become a significant public safety concern. Currently, over thirty-two million individuals who are seventy or older have driver’s licenses, and that number is growing quickly. In addition, almost ten percent of U.S. seniors (those sixty-five and older) have dementia, and an additional twenty-two percent have mild cognitive impairment. Between a quarter and a half of individuals with mild to moderate dementia still drive. As cognitive abilities such as memory, attention, and decision-making skills deteriorate, a driver's ability to operate a vehicle safely can be compromised. This not only puts the …

Assessing The Performance Of Place-Based Economic Development Incentives: What’S The Word On The Street?, Matthew Rossman

Faculty Publications

Although politically popular, place-based economic development incentives have had limited success and proven difficult to evaluate. Unlike most legal scholarship on this topic, this article takes a qualitative approach in examining them. It studies the performance of four distinct types of development incentives intended to alleviate economic distress, using insight gathered from interviews with business owners, development professionals, and community members in six adjoining neighborhoods, where past efforts at revitalization have failed despite locational advantages.

The challenges faced by economically distressed places are typically varied and complex. The qualitative sampling techniques employed in this article’s research generated nuanced, ‘on the …

The Delegation Doctrine, Jonathan Adler

Faculty Publications

The nondelegation doctrine may remain moribund, but the outlines of a delegation doctrine may be visible in the Court’s recent jurisprudence. Instead of policing the limits on Congress’s power to delegate authority to administrative agencies, the Court has instead been focusing on whether the power administrative agencies seek to exercise has been properly delegated by Congress in the first place. This emerging delegation doctrine may be seen in both the Court’s recent major questions doctrine cases, as well as the Court’s decisions refining and constraining the Chevron doctrine. In both contexts the Court has embraced the principle that agencies may …

Speech Regulation And Tobacco Harm Reduction, Jonathan Adler, Jacob James Rich

Faculty Publications

Regulation of commercial speech is a major component of federal regulation of tobacco products. Since adoption of federal tobacco legislation, the Food and Drug Administration has asserted regulatory authority over ENDS and other vaping products as “tobacco products,” subjecting them to the same regulatory regime as traditional tobacco products even though such projects appear to pose less of a threat to public health. Such regulation, and the restriction on truthful speech in particular, may be having negative consequences for public health. Barring producers from informing consumers about the relative risks of vaping products and their potential to reduce smoking eliminates …

History's Speech Acts, Jessie Hill

Faculty Publications

This Essay considers the historic relationship between symbolic public expressions of racial and religious identity—in particular, Confederate symbols and Christian religious displays. These displays sometimes comprise shared symbology, and the adoption of this symbology overlaps at distinct moments in U.S. history in which Confederate and Christian symbolism converged to express messages of combined religious and racial superiority. This Essay argues that these forms of expression can best be understood as “speech acts” that seek to construct a particular social reality, often in defiance of political and social fact. They thus not only express but also enact social hierarchies. It further …

Power Shift: The Return Of The Uniting For Peace Resolution, Michael P. Scharf

Faculty Publications

In 2022, the United States dusted off the 1950 Uniting for Peace Resolution in order to obtain General Assembly condemnation of the Russian invasion of Ukraine. This was the first time in three decades that the Security Council and General Assembly had utilized the Uniting for Peace mechanism – a process designed to end-run a Security Council veto. Together with the General Assembly’s creation of the international investigative mechanism for Syria in 2016 over Russia’s objection, the use of the Uniting for Peace process to condemn Russia’s aggression represented a shift in power away from the Security Council and to …

Litigating Partial Autonomy, Cassandra Burke Robertson

Faculty Publications

Who is responsible when a semi-autonomous vehicle crashes? Automobile manufacturers claim that because Advanced Driver Assistance Systems (ADAS) require constant human oversight even when autonomous features are active, the driver is always fully responsible when supervised autonomy fails. This Article argues that the automakers’ position is likely wrong both descriptively and normatively. On the descriptive side, current products liability law offers a pathway toward shared legal responsibility. Automakers, after all, have engaged in numerous marketing efforts to gain public trust in automation features. When drivers’ trust turns out to be misplaced, drivers are not always able to react in a …

Sanctions And Consequences: Third-State Impacts And The Development Of International Law In The Shadow Of Unilateral Sanctions On Russia, Avidan Cover

Faculty Publications

In response to Russia’s invasion of Ukraine, NATO member states and their allies have imposed “unprecedented,” unilateral economic sanctions to hold Russia accountable, degrade its military capability, and limit its international financial access.1 From the outset, sanctioning states such as the United States have stated that they “designed these sanctions to maximize the long-term impact on Russia and to minimize the impact on [themselves and their] allies.”2 These sanctions on an economic power like Russia “have global economic effects far greater than anything seen before.”3 And there is concern that the unintended consequences of the sanctions will disproportionately harm developing …

Standing Without Injury, Jonathan Adler

Faculty Publications

It is well-established that injury in fact is an essential element of Article III standing, but should it be? Academics have long criticized the Supreme Court’s standing jurisprudence. These criticisms are now being echoed by federal judges. Judge Kevin Newsom, for one, has suggested existing standing jurisprudence has become ungrounded from constitutional text, incoherent, and administrable. He suggests abandoning injury in fact altogether, and recognizing broad congressional power to authorize causes of action to sue in federal court, subject only to those limits imposed by the executive branch’s obligation to “Take Care” that the laws are faithfully executed. In short, …

The Patient's Voice: Legal Implications Of Patient-Reported Outcome Measures, Sharona Hoffman, Andy Podgurski

Faculty Publications

In recent years, the medical community has paid increasing attention to patients' own assessments of their health status. Even regulatory agencies, such as the Food and Drug Administration and the Centers for Medicare and Medicaid Services, are now interested in patient self-reports. The legal implications of this shift, however, have received little attention. This Article begins to fill that gap. It introduces to the legal literature a discussion that has been ongoing in the health care field.

Patient-reported outcome measures (PROMs) are reports of patients’ symptoms, treatment outcomes, and health status that are documented directly by patients, typically through electronic …

Tarnished Gold: The Endangered Species Act At 50, Jonathan Adler

Faculty Publications

The ESA is arguably the most powerful and stringent federal environmental law on the books. Yet for all of the Act’s force and ambition, it is unclear how much the law has done much to achieve its central purpose: the conservation of endangered species. The law has been slow to recover listed species and has fostered conflict over land use and scientific determinations that frustrate cooperative conservation efforts. The Article aims to take stock of the ESA’s success and failures during its first fifty years, particularly with regard the conservation of species habitat on private land. While the Act authorizes …

Dual Fiduciaries: Unicorns, Corporate Law And The New Frontier, Anat Alon-Beck

Faculty Publications

Legal and regulatory structures influence the shift in equities in the United States from public markets to private markets, entrepreneurial opportunities and new firm formation. There is a rise in the number of “unicorn” firms, which are privately held venture-capital backed startups that are valued at $1 billion or more. The number of unicorns in the United States and overseas has grown exponentially over the last few years. This chapter discusses the rise of the unicorns and with it the increasing importance of corporate governance and fiduciary duties. There are new vertical and horizontal conflicts among common and preferred shareholders …

Is The Clean Water Act Obsolete?, Jonathan Adler

Faculty Publications

The Clean Water Act (CWA) is fifty years old and has not been meaningfully revised in 35 years. Over this time, the CWA has helped to protect and improve water quality, but substantial water quality challenges remain including (but not limited to) nonpoint source water pollution. Given these challenge's and dramatic changes in the nature of and scientific understanding of today’s water quality challenges, it is appropriate to ask whether the CWA remains capable of fostering further environmental progress or whether it is obsolete. Prepared for the Case Western Reserve Law Review symposium on “The Clean Water Act at 50,” …

The Hidden Cost Of Contracting For Esg: A New Perspective On Private Ordering, Juliet P. Kostritsky, Jillian T. Fox, Blake Spiller

Faculty Publications

Currently, despite the increasing pressure on corporations to account for Environmental Social Governance (ESG) factors in their disclosures and actions, a lack of clarity on the meaning of ESG persists. ESG might be equivalent to stakeholderism, in which companies can sacrifice firm or shareholder market value to serve non-financial values. A second meaning would permit companies to pursue ESG only if it advanced the firm’s financial value. The second meaning poses no new challenges for corporate law.

This Article will address how the lack of clarity on ESG makes it difficult to assess whether a provision in a contract of …

Professional Speech At Scale, Cassandra Burke Robertson, Sharona Hoffman

Faculty Publications

Regulatory actions affecting professional speech are facing new challenges from all sides. On one side, the Supreme Court has grown increasingly protective of professionals’ free speech rights, and it has subjected regulations affecting that speech to heightened levels of scrutiny that call into question traditional regulatory practices in both law and medicine. On the other side, technological developments, including the growth of massive digital platforms and the introduction of artificial intelligence programs, have created brand new problems of regulatory scale. Professional speech is now able to reach a wide audience faster than ever before, creating risks that misinformation will cause …

Due Process, Delegation, And Private Veto Power, B. Jessie Hill

Faculty Publications

Nondelegation doctrine is enjoying a scholarly revival. Some commentators have read the U.S. Supreme Court’s 2019 decision in Gundy v. United States to portend new limitations on Congress’s ability to give away its authority to the executive branch. A recent decision involving Amtrak’s entitlement to exercise regulatory authority raised similar questions about delegation to private entities. Together, these cases may suggest imminent new constraints on the administrative state, generating urgent reconsideration of the purpose and application of the nondelegation doctrine.

This Article is focused on one particular line of nondelegation cases that has received less attention in the nondelegation debate: …

Bargaining Inequality: Employee Golden Handcuffs And Asymmetric Information, Anat Alon-Beck

Faculty Publications

Inaccurate unicorn firm valuation is a well-documented problem in the finance literature. Employees of these large, privately held companies do not have access to fair market valuation or financial statements and, in many cases, are denied access to such reports, even when requested. Unicorn employees are granted equity as a substantial part of their compensation, however due to the inferior position of employees in comparison to the start-up founders and other investors, information shedding light on the value of their equity grants has been withheld, as apparent in recent practices.

Start-up founders, investors, and their lawyers have systematically abused equity …

The Appellate Judge As The Thirteenth Juror: Combating Implicit Bias In Criminal Convictions, Andrew S. Pollis

Faculty Publications

Research has documented the effect that implicit bias plays in the disproportionately high wrongful-conviction rate for people of color. This Article proposes a novel solution to the problem: empowering individual appellate judges, even over the dissent of two colleagues, to send cases back for retrial when the trial record raises suspicions of a conviction tainted by the operation of implicit racial bias.

Factual review on appeal is unwelcome in most jurisdictions. But the traditional arguments against it, which highlight the importance of deference to the jury’s fact-finding powers, are overly simplistic. Scholars have already demonstrated the relative institutional competency of …

Vulnerable Populations And Vaccine Injury Compensation: The Need For Legal Reform, Katharine A. Van Tassel, Sharona Hoffman

Faculty Publications

This chapter argues that the potential for vaccine-related harms raises acute concerns for vulnerable populations. These harms have a disparate impact on low-income people, who are disproportionately non-White, and who have limited financial resources to obtain medical care, weather job losses, and pursue injury compensation. When a vaccine is given as a countermeasure during a declared public health emergency (PHE), the problem is acute because of the limited availability of injury compensation.

Professional Speech At Scale, Cassandra Burke Robertson, Sharona Hoffman

Faculty Publications

Regulatory actions affecting professional speech are facing new challenges from all sides. On one side, the Supreme Court has grown increasingly protective of professionals’ free speech rights, and it has subjected regulations affecting that speech to heightened levels of scrutiny that call into question traditional regulatory practices in both law and medicine. On the other side, technological developments, including the growth of massive digital platforms and the introduction of artificial intelligence programs, have created brand new problems of regulatory scale. Professional speech is now able to reach a wide audience faster than ever before, creating risks that misinformation will cause …

Cognitive Decline And The Workplace, Sharona Hoffman

Faculty Publications

Cognitive decline will increasingly become a workplace concern because of three intersecting trends. First, the American population is aging. In 2019, 16.5 percent of the population, or fifty-four million people, were age 65 and over, and the number is expected to increase to seventy-eight million by 2025. Dementia is not uncommon among older adults, and by the age of eighty-five, between twenty-five and fifty percent of individuals suffer from this condition. Second, individuals are postponing retirement and prolonging their working lives. For example, about a quarter of physicians are over sixty-five, as are fifteen percent of attorneys. The average age …

Uprooting Roe, B. Jessie Hill, Mae Kuykendall

Faculty Publications

The U.S. Supreme Court is likely poised to overturn Roe v. Wade in a matter of months. Yet, the roots of Roe run both wide and deep, and to uproot Roe would be to uproot the Constitution’s promise of gender equality in a radical way. Just as the Supreme Court’s jurisprudence of reproductive liberty freed people with reproductive capacity from having their destinies and status tied to their biology, an uprooting of Roe and its companion principles will restore the iron rules of gender difference and return women to their common-law status as lacking self-ownership and equal citizenship.

Mythical Unicorns And How To Find Them: The Disclosure Revolution, Anat Alon-Beck, John Livingstone

Faculty Publications

Our federal and state securities laws are centered around two vital requirements for economic growth: capital formation and investor protection. Section 12(g) sits in the middle of these two concepts by attempting to ensure the latter without jeopardizing the former. However, since the passage of the Jumpstart Our Business Startups (“JOBS”) Act in 2012, exempt capital formation in the unregulated private market has increased dramatically. Companies raise nearly limitless capital from a wide range of sources while remaining outside of the public reporting regime. The overall shift has led to worse corporate governance outcomes, a decline in IPO volume and …

Displacement And Preemption Of Climate Nuisance Claims, Jonathan H. Adler

Faculty Publications

New York City and other municipalities have filed state-law-based nuisance suits against fossil fuel companies seeking compensatory damages for the consequences of climate change. Previous nuisance claims, filed under federal common law, were held to be displaced by federal environmental statutes. Defendants have argued that state-law-based claims should likewise be preempted. Yet while the enactment of federal regulatory statutes displaces federal common law actions for interstate pollution, such enactments do not necessarily preempt state common law actions, even where pollution crosses state boundaries, as it is more difficult to preempt state common law than it is to displace federal common …

A Duty To Diversify, Anat Alon-Beck, Darren Rosenblum, Michal Agmon-Gonnen

Faculty Publications

Fiduciary duties reflect the central role of leaders in corporate governance. Those with the most responsibility benefit the most from corporate success, but also bear commensurate fiduciary responsibilities. Equality, diversity, and inclusion may seem an odd fit among other fiduciary duties. However, fiduciary duties are where governance imposes the burden of “doing the right thing.” Fiduciary duties involve normatively good behavior that proves essential to ensuring responsible decision-making and achieving positive outcomes for firms.

Corporate law allows, encourages and perhaps, today, even mandates, corporate leaders to do the right thing. Not only does it seem appropriate to ask corporate leaders, …

West Virginia V. Epa: Some Answers About Major Questions, Jonathan Adler

Faculty Publications

n West Virginia v. Environmental Protection Agency (WV v. EPA) the Supreme Court rejected an expansive reading of Section 7411 of the Clean Air Act. Expressly invoking the “major questions doctrine” for the first time in a majority opinion, the Court concluded Section 7411 of does not allow the EPA to require generation shifting to reduce greenhouse emissions. This decision rested on the longstanding and fundamental constitutional principle that agencies only have that regulatory authority Congress delegated to them. The Court further bolstered the argument that delegations of broad regulatory authority should not be lightly presumed, but also left substantial …

Tax Issues Affecting Marijuana Businesses, Erik M. Jensen

Faculty Publications

This article considers several issues affecting Internal Revenue Code section 280E, which denies income-tax deductions and credits to businesses trafficking in controlled substances. Even though marijuana is legal in an increasing number of states, it remains a controlled substance under federal law and section 280E therefore applies to marijuana businesses. As a result, investing in a marijuana business is much less attractive than it would otherwise be. The article discusses issues of statutory interpretation but, more important, considers whether an almost complete denial of deductions and credits converts what is in form an income tax into something else. If the …

Response To Wasserman And Rhodes: The Texas S.B. 8 Litigation And “Our Formalism”, B. Jessie Hill

Faculty Publications

In Solving the Procedural Puzzles of the Texas Heartbeat Act and Its Imitators: The Limits and Opportunities of Offensive Litigation, Professors Howard Wasserman and Rocky Rhodes explain why the U.S. Supreme Court correctly rejected the pre-enforcement legal challenge brought by abortion providers challenging Texas’s draconian abortion law, S.B. 8, which was specifically designed to evade such challenges. Wasserman and Rhodes also provide grounds for hope on the part of future similarly situated challengers to S.B. 8 copycat laws, outlining a route by which the clinics could have engaged in offensive federal-court litigation against “any person” plaintiffs who seek to …

Big Bad Roe, B. Jessie Hill

Faculty Publications

Now that Roe v. Wade is gone, what should replace it? This moment presents a rare opportunity to re-imagine the right to reproductive autonomy, given that the longstanding constitutional framework governing that right has been tossed out the window. For the most part, constitutional litigation over the right to abortion has shifted to state courts and is brought under state constitutions. Thus, as state courts begin to recognize the existence of a constitutional right to reproductive autonomy under state constitutions, they must decide what the right looks like. In several cases currently being litigated in state courts, advocates have argued …