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Codetermination In Theory And Practice, Grant M. Hayden, Matthew T. Bodie Jan 2021

Codetermination In Theory And Practice, Grant M. Hayden, Matthew T. Bodie

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A system of shared corporate governance between shareholders and workers, codetermination has been mostly ignored within the U.S. corporate governance literature. When it has made an appearance, it has largely served as a foil for shareholder primacy and an example of corporate deviance. However, over the last twenty years—and especially in the last five—empirical research on codetermination has shown surprising results as to the system’s efficiency, resilience, and benefits to stakeholders. This Article reviews the extant American legal scholarship on codetermination and provides a fresh look at the current state of codetermination theory and practice. Rather ...


Poverty Lawgorithms A Poverty Lawyer’S Guide To Fighting Automated Decision-Making Harms On Low-Income Communities, Michele E. Gilman Sep 2020

Poverty Lawgorithms A Poverty Lawyer’S Guide To Fighting Automated Decision-Making Harms On Low-Income Communities, Michele E. Gilman

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Automated decision-making systems make decisions about our lives, and those with low-socioeconomic status often bear the brunt of the harms these systems cause. Poverty Lawgorithms: A Poverty Lawyers Guide to Fighting Automated Decision-Making Harms on Low-Income Communities is a guide by Data & Society Faculty Fellow Michele Gilman to familiarize fellow poverty and civil legal services lawyers with the ins and outs of data-centric and automated-decision making systems, so that they can clearly understand the sources of the problems their clients are facing and effectively advocate on their behalf.


Resolving Tensions Between Disability Rights Law And Covid-19 Mask Policies, Elizabeth Pendo, Robert Gatter, Seema Mohapatra Jul 2020

Resolving Tensions Between Disability Rights Law And Covid-19 Mask Policies, Elizabeth Pendo, Robert Gatter, Seema Mohapatra

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As states reopen, an increasing number of state and local officials are requiring people to wear face masks while out of the home. Grocery stores, retail outlets, restaurants and other businesses are also announcing their own mask policies, which may differ from public policies. Public health measures to stop the spread of the coronavirus such as wearing masks have the potential to greatly benefit millions of Americans with disabilities, who are particularly vulnerable to the impact of COVID-19. But certain disabilities may make it difficult or inadvisable to wear a mask.

Mask-wearing has become a political flashpoint, putting people with ...


Lessons Learned From The Suffrage Movement, Margaret E. Johnson Jun 2020

Lessons Learned From The Suffrage Movement, Margaret E. Johnson

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No abstract provided.


Can Covid-19 Get Congress To Finally Strengthen U.S. Antitrust Law?, Robert H. Lande, Sandeep Vaheesan May 2020

Can Covid-19 Get Congress To Finally Strengthen U.S. Antitrust Law?, Robert H. Lande, Sandeep Vaheesan

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The COVID-19 pandemic could cause Congress to strengthen our merger laws. The authors of this short article strongly urge Congress to do this, but to do this in a manner that ignores 5 myths that underpin current merger policy:

Myth 1: Mergers Eliminate Wasteful Redundancies and Produce More Efficient Businesses
Myth 2: Current Merger Enforcement Protects Consumers
Myth 3: Merger Remedies Preserve Competition
Myth 4: The Current Merger Review System Offers Transparency and Guidance to Businesses and the Public
Myth 5: Corporations Need Mergers to Grow


Submission Of Robert H. Lande To House Judiciary Antitrust Subcommittee Investigation Of Digital Platforms, Robert H. Lande Apr 2020

Submission Of Robert H. Lande To House Judiciary Antitrust Subcommittee Investigation Of Digital Platforms, Robert H. Lande

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The House Judiciary Antitrust Subcommittee asked me to submit suggestions concerning the adequacy of existing antitrust laws, enforcement policies, and enforcement levels insofar as they impact the state of competition in the digital marketplace. My submission recommends the following nine reforms:

1. A textualist analysis of the Sherman Act shows that Section 2 actually is a no-fault monopolization statute. At a minimum Congress should enact a strong presumption that every firm with a 67% market share has violated Section 2. This would move the Sherman Act an important step in the right direction, the direction Congress intended in 1890. My ...


The Intellectual Property Of Vaccines: Takeaways From Recent Infectious Disease Outbreaks, Ana Santos Rutschman Jan 2020

The Intellectual Property Of Vaccines: Takeaways From Recent Infectious Disease Outbreaks, Ana Santos Rutschman

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This Essay examines the ways in which intellectual property regimes influence incentives for the development of new vaccines for infectious diseases. Charting the tension between market forces and public health imperatives, the Essay considers an emerging solution to the long-standing problem of insufficient incentives for vaccine research and development: the rise of public-private partnerships in the health space. The Essay provides a short case study on CEPI, a large-scale public-private partnership dedicated exclusively to funding research on vaccines for infectious diseases. In exploring how the interaction between intellectual property rules and practices affect vaccine innovation, the Essay offers illustrations from ...


Property And Intellectual Property In Vaccine Markets, Ana Santos Rutschman Jan 2020

Property And Intellectual Property In Vaccine Markets, Ana Santos Rutschman

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As biopharmaceutical forms of technology, vaccines constitute one of the most important tools for the promotion and maintenance of public health. Tolstoy famously wrote that “[h]appy families are all alike; every unhappy family is unhappy in its own way.” Vaccine markets offer perhaps one of the most extreme embodiments of Tolstoy’s principle in the field of biopharmaceutical innovation. Vaccines are often described as one of the most unprofitable types of biopharmaceutical goods, under-incentivized from a research and development (R&D) perspective, and routinely failing to attract sufficient investment from traditional funders in biopharma. In this sense, and despite ...


Regulatory Malfunctions In The Drug Patent Ecosystem, Ana Santos Rutschman Jan 2020

Regulatory Malfunctions In The Drug Patent Ecosystem, Ana Santos Rutschman

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Patent protection for several of the world’s best-selling and most promising drugs — biologics — has begun waning. Over the next few years, many other drugs in this category will lose critical patent protection. In principle, this should open the United States market to competition, as more manufacturers are now able to produce relatively cheaper versions of these expensive drugs, known as biosimilars. That, however, has not been the case. This Article examines this problem in the context of the articulation between anticompetitive behaviors and regulatory interventions in the biopharmaceutical arena, and argues for a novel solution: a timelier response provided ...


Dalliances, Defenses, And Due Process: Prosecuting Sexual Harassment In The Me Too Era, Kenneth Lasson Jan 2020

Dalliances, Defenses, And Due Process: Prosecuting Sexual Harassment In The Me Too Era, Kenneth Lasson

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While the heightened awareness of sexual predation in the workplace is, in many ways, a welcome development, the new norms currently being promulgated and implemented have already fallen prey to the law of unintended consequences, not to mention the limitations of law itself. Perhaps the most remarkable result of the plethora of prosecutions—especially those taking place on American campuses— is that, despite widespread recognition of their lack of rudimentary due process, so little has been done to correct the failures. Just as cultural attitudes have changed toward politics, entertainment, and literature, so too have perspectives on relationships in corporate ...


The Mosaic Of Coronavirus Vaccine Development: Systemic Failures In Vaccine Innovation, Ana Santos Rutschman Jan 2020

The Mosaic Of Coronavirus Vaccine Development: Systemic Failures In Vaccine Innovation, Ana Santos Rutschman

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Scientists are racing to develop vaccines against the novel coronavirus. While some vaccine candidates may enter the market in record time, the current vaccine innovation ecosystem exposes governance lacunas at both the international and domestic levels.


Employee Testing, Tracing, And Disclosure As A Response To The Coronavirus Pandemic, Matthew T. Bodie, Michael Mcmahon Jan 2020

Employee Testing, Tracing, And Disclosure As A Response To The Coronavirus Pandemic, Matthew T. Bodie, Michael Mcmahon

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As the COVID-19 pandemic continues to devastate the United States, the federal government has largely failed to implement a national program to prevent and contain the virus. As a result, many employers have undertaken their own workplace coronavirus mitigation efforts. This essay examines, in three parts, the legal framework surrounding employer systems of workplace testing, tracing, and disclosure. It first examines the legal issues surrounding employer-mandated COVID-19 testing and temperature checks, especially issues arising under the Americans with Disabilities Act (ADA) and Health Information Portability and Accountability Act (HIPAA). Regarding employer contact tracing efforts, the essay next reviews the multitude ...


Uniform International Tax Collection And Distribution For Global Development, A *(**)Topian Beps Alternative, Henry Ordower Jan 2020

Uniform International Tax Collection And Distribution For Global Development, A *(**)Topian Beps Alternative, Henry Ordower

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International tax reform projects, including the OECD’s Base Erosion and Profit Shifting (“BEPS”) iterations, seek to collect additional tax from multi-national enterprises (“MNEs”) under rubrics of fairer taxation. The reform projects propose various methods of reallocating income that taxpayers have sourced to low and no tax jurisdictions to affluent developed economies for those economies to tax under their own taxing rules. The reallocation would concentrate the bulk of incremental tax revenue into the treasuries of affluent developed economies. The projects focus on allocating the tax base correctly rather than addressing the distribution of tax revenue worldwide.

This article maintains ...


Capital, An Elusive Tax Object And Impediment To Sustainable Taxation, Henry Ordower Jan 2020

Capital, An Elusive Tax Object And Impediment To Sustainable Taxation, Henry Ordower

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Sustainable taxation requires stability and predictability. Sustainable taxation is a tax or taxes that collect sufficient revenue to support the governmental goods and services the society needs and wants. The taxes must provide for 1) even-handedness -- something akin to horizontal equity, 2) distributional fairness -- a concept emerging from notions of vertical equity, 3) transparency in application so that the populace understands and accepts the tax and the need for it and 4) collection mechanisms that do not favor some societal groups, especially those with resources to secure creative tax advisors, over others who lack the resources. Narrow base taxes – fuel ...


Taking Employment Contracts Seriously, Matthew T. Bodie Jan 2020

Taking Employment Contracts Seriously, Matthew T. Bodie

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The essay, written for the Symposium in Honor of the Work of Charles A. Sullivan, examines the honoree's work on the employment contract. Rather than quickly moving past the common law of contract onto the many statutory regimes governing the workplace, Sullivan has repeatedly explored the nature of the employment agreement and the role of common-law doctrines in regulating this relationship. The essay explores Sullivan's expeditions into the common law and compares his work with those scholars working in the private law and New Private Law traditions. In addition, I argue that the contractual approach has failed to ...


Law, Structural Racism, And The Covid-19 Pandemic, Ruqaiijah Yearby, Seema Mohapatra Jan 2020

Law, Structural Racism, And The Covid-19 Pandemic, Ruqaiijah Yearby, Seema Mohapatra

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Racial and ethnic minorities have always been the most impacted by pandemics because of: disparities in exposure to the virus; disparities in susceptibility to contracting the virus; and disparities in treatment. This article explains how structural racism, the ways in which laws are used to advantage the majority and disadvantage racial and ethnic minorities, has caused these disparities. Specifically, this article focuses on how employment, housing, health care, and COVID-19 relief laws have been manipulated to disadvantage racial and ethnic minorities, making minorities more susceptible to COVID-19 infection and death. This article uses Blumenshine’s 2008 framework to outline how ...


Structural Discrimination In Covid-19 Workplace Protections, Ruqaiijah Yearby, Seema Mohapatra Jan 2020

Structural Discrimination In Covid-19 Workplace Protections, Ruqaiijah Yearby, Seema Mohapatra

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Workers, who are being asked to risk their health by working outside their homes during the COVID-19 pandemic, need adequate hazard compensation, safe workplace conditions, and personal protective equipment (PPE). Sadly, this is not happening for many essential workers, such as those working in home health care and in the meat processing industry. These workers are not only being unnecessarily exposed to the virus, but they are also not receiving paid sick leave, unemployment benefits, and affordable health care and childcare. The lack of these protections is due to structural discrimination and has disproportionately disadvantaged women of color and low-wage ...


The Americans With Disabilities Act And Healthcare Employer-Mandated Vaccinations, Y. Tony Yang, Elizabeth Pendo, Dorit Rubinstein Reiss Jan 2020

The Americans With Disabilities Act And Healthcare Employer-Mandated Vaccinations, Y. Tony Yang, Elizabeth Pendo, Dorit Rubinstein Reiss

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Battles around workplace vaccination policies often focus on the annual influenza vaccine, but many healthcare employers impose requirements for additional vaccines because of the increased likelihood that employees in this sector will interact with populations at increased risk of acquiring or experiencing harmful sequelae of vaccine-preventable diseases. The federal Centers for Disease Control and Prevention and many states recommend healthcare employees receive numerous vaccines, including measles, mumps, and rubella (“MMR”); tetanus, diphtheria, and pertussis (“Tdap”). However, recent outbreaks of once-eliminated diseases that are now resurgent and the rising antivaccination movement raise questions about how far employers can go to mandate ...


The Role Of Law And Policy In Achieving Healthy People's Disability And Health Goals Around Access To Health Care, Activities Promoting Health And Wellness, Independent Living And Participation, And Collecting Data In The United States, Elizabeth Pendo, Lisa Iezzoni Jan 2020

The Role Of Law And Policy In Achieving Healthy People's Disability And Health Goals Around Access To Health Care, Activities Promoting Health And Wellness, Independent Living And Participation, And Collecting Data In The United States, Elizabeth Pendo, Lisa Iezzoni

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Ensuring that the almost 60 million Americans with disabilities live as healthy and independent lives as possible is an important goal for our nation. This evidence-based report highlights efforts to better use law and policy to support and protect people with disabilities. Specifically, it examines how existing federal laws and policies could be leveraged by states, communities, and other sectors to reduce barriers to primary and preventive care; reduce barriers to local health and wellness programs; increase access to leisure, social, or community activities (and indirectly, to religious activities) for individuals with disabilities; and generate better disability data needed to ...


The Problem With Relying On Profit-Driven Models To Produce Pandemic Drugs, Ana Santos Rutschman Jan 2020

The Problem With Relying On Profit-Driven Models To Produce Pandemic Drugs, Ana Santos Rutschman

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The longstanding problems of relying on a market response to a pandemic are becoming readily apparent in the United States, which has quickly become the epicenter of the COVID-19 outbreak. The problems are particularly pronounced in pharmaceutical markets, where we are pinning our hopes for both cures and vaccines. In previous work we have shown how characteristics of healthcare markets in the United States create a divergence between the private incentives of for-profit companies and public health needs, leading to sub-optimal health outcomes in what is a uniquely market-driven healthcare system. In this Essay, written as the COVID-19 pandemic unfolds ...


The Reemergence Of Vaccine Nationalism, Ana Santos Rutschman Jan 2020

The Reemergence Of Vaccine Nationalism, Ana Santos Rutschman

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This short essay explores the reemergence of vaccine nationalism during the COVID-19 pandemic. The essay traces the pre-COVID origins of vaccine nationalism and explains how it can have detrimental effects on equitable access to newly developed vaccines.


PortugalʼS Response To Covid-19, Ana Santos Rutschman Jan 2020

PortugalʼS Response To Covid-19, Ana Santos Rutschman

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This essay for the Regulatory Review's special series on Comparing Nations’ Responses to COVID-19 examines the early response to the pandemic in Portugal. The essay focuses on measures adopted in connection with the declarations of state of emergency and state of calamity, as well as the treatment of migrant populations throughout the pandemic.


Mapping Misinformation In The Coronavirus Outbreak, Ana Santos Rutschman Jan 2020

Mapping Misinformation In The Coronavirus Outbreak, Ana Santos Rutschman

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The coronavirus outbreak has sent ripples of fear and confusion across the world. These sentiments—and our collective responses to the outbreak—are made worse by rampant misinformation surrounding the new strain of the virus, COVID-2019. In this post, I survey some of the most pervasive areas of tentacular coronavirus-related misinformation that has proliferated online -- as well as the responses of social media companies like YouTube, Facebook, Pinterest and TikTok that may ultimately prove inadequate given the magnitude of the problem.


Vaccine Hesitancy: Experimentalism As Regulatory Opportunity, Ana Santos Rutschman, Timothy L. Wiemken Jan 2020

Vaccine Hesitancy: Experimentalism As Regulatory Opportunity, Ana Santos Rutschman, Timothy L. Wiemken

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This symposium on patient innovation has prompted us to explore problems related to departures from official vaccination schedules. At a time in which vaccine confidence has been plummeting across the world, we argue that a more granular understanding—and ultimately a more finely tuned regulatory framework—is needed to reflect the current behavioral heterogeneity among indicated patients who choose to forego or delay administration of recommended vaccines. In particular, we focus on a phenomenon we term “vaccine staggering:” a departure from vaccination schedules in the form of delays in receiving one or more vaccines, which is motivated by the desire ...


Substance Use Disorder, Discrimination, And The Cares Act: Using Disability Law To Strengthen New Protections, Kelly K. Dineen, Elizabeth Pendo Jan 2020

Substance Use Disorder, Discrimination, And The Cares Act: Using Disability Law To Strengthen New Protections, Kelly K. Dineen, Elizabeth Pendo

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The COVID-19 pandemic is having devastating consequences for people with substance use disorders (SUD). SUD is a chronic health condition—like people with other chronic health conditions, people with SUD experience periods of remission and periods of exacerbation and relapse. Unlike people with most other chronic conditions, people with SUD who experience a relapse may face criminal charges and incarceration. They are chronically disadvantaged by pervasive social stigma, discrimination, and structural inequities. People with SUD are also at higher risk for both contracting the SARS-CoV-19 virus and experiencing poorer outcomes. Meanwhile, there are early indications that pandemic conditions have led ...


“Stealing Conflicts” No More?: The Gaps And Anti-Restorative Elements In States’ Restorative-Justice Laws, Lynn S. Branham Jan 2020

“Stealing Conflicts” No More?: The Gaps And Anti-Restorative Elements In States’ Restorative-Justice Laws, Lynn S. Branham

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This Article first profiles key findings emanating from a statutory analysis of the close to two hundred criminal-justice-related, as well as juvenile-justice-related, statutory provisions in the United States that pertain to restorative justice and practices (RJ/RP). This section of the Article unveils significant gaps and other substantial problems in states’ restorative-justice laws, including ways in which some of them conflict with core restorative tenets. The Article then proffers seven recommended statutory provisions for states’ consideration when enacting or amending their own RJ/RP laws. These recommended provisions, combined with fidelity in their implementation, would help remedy or avert the ...


Human Rights Guidance For Environmental Justice Attorneys, Lauren E. Bartlett Jan 2020

Human Rights Guidance For Environmental Justice Attorneys, Lauren E. Bartlett

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People of color in the United States face worsening environmental conditions and disproportionate environmental harms. Climate change is causing hurricanes to ravage our coasts with increasing intensity and frequency, tornados to sweep across our plains even in the “off” season, and severe flooding that threatens to wipe out entire towns. Moreover, people of color must disproportionately deal with heat and air pollution, toxic waste dumps, contaminants in drinking water, failing aged sanitation systems, negative health effects, and the lack of access to a true remedy, outside of their own pockets, for these injustices. While there is a robust environmental movement ...


Smoke Screens: An Initial Analysis Of The Coronavirus Lawsuits In The United States Against China And The World Health Organization, Ana Santos Rutschman, Robert Gatter Jan 2020

Smoke Screens: An Initial Analysis Of The Coronavirus Lawsuits In The United States Against China And The World Health Organization, Ana Santos Rutschman, Robert Gatter

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In this short essay we provide a preliminary analysis of the lawsuits filed by Missouri against China, and New York against the World Health Organization over the COVID-19 pandemic. We also situate the lawsuits against the expanding coronavirus-related misinformation “epidemic.”


'Terroristic Threats' And Covid-19: A Guide For The Perplexed, Chad Flanders, Courtney Federico, Eric Harmon, Lucas Klein Jan 2020

'Terroristic Threats' And Covid-19: A Guide For The Perplexed, Chad Flanders, Courtney Federico, Eric Harmon, Lucas Klein

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The first few months of the COVID-19 outbreak in the United States saw the rise of a troubling sort of behavior: people would cough or spit on people or otherwise threaten to spread the COVID-19 virus, resulting in panic and sometimes thousands of dollars’ worth of damages to businesses. Those who have been caught doing this — or have filmed themselves doing it — have been charged under so-called “terroristic threat” statutes. But what is a terroristic threat, and is it an appropriate charge in these cases? Surprisingly little has been written about these statutes given their long history and regular use ...


Covid-19 And The Conundrum Of Mask Requirements, Robert Gatter, Seema Mohapatra Jan 2020

Covid-19 And The Conundrum Of Mask Requirements, Robert Gatter, Seema Mohapatra

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As states begin to loosen their COVID-19 restrictions, public debate is underway about what public health measures are appropriate. Many states have some form of mask-wearing orders to prevent the spread of COVID-19 infection. Public health guidance from the Centers for Disease Control and Prevention and the World Health Organization has conflicted. From a public health point of view, it is not clear what the right answer is. In the absence of directives, individuals are also making their own choices about mask use. At a time when public health measures, like shelter-in-place orders and social distancing, are being used to ...