Disarming Employees: How American Employers Are Using Mandatory Arbitration To Deprive Workers Of Legal Protection, 2015 University of Nevada, Las Vegas -- William S. Boyd School of Law
Disarming Employees: How American Employers Are Using Mandatory Arbitration To Deprive Workers Of Legal Protection, Jean R. Sternlight
Scholarly Works
Employers’ imposition of mandatory arbitration constricts employees’ access to justice. The twenty percent of the American workforce covered by mandatory arbitration clauses file just 2,000 arbitration claims annually, a minuscule number even compared to the small number of employees who litigate claims individually or as part of a class action. Exploring how mandatory arbitration prevents employees from enforcing their rights the Article shows employees covered by mandatory arbitration clauses (1) win far less frequently and far less money than employees who litigate; (2) have a harder time obtaining legal representation; (3) are often precluded from participating in class, collective or …
Dean's Column: Unlv Law Students Making Tracks In Carson City, 2015 University of Nevada, Las Vegas -- William S. Boyd School of Law
Dean's Column: Unlv Law Students Making Tracks In Carson City, Anne R. Traum
Scholarly Works
No abstract provided.
The American Criminal Code: General Defenses, 2015 University of Pennsylvania Carey Law School
The American Criminal Code: General Defenses, Paul H. Robinson, Matthew Kussmaul, Camber Stoddard, Ilya Rudyak, Andreas Kuersten
All Faculty Scholarship
There are fifty-two bodies of criminal law in the United States. Each stakes out often diverse positions on a range of issues. This article defines the “American rule” for each of the issues relating to general defenses, a first contribution towards creating an “American Criminal Code.”
The article is the result of a several-year research project examining every issue relating to justification, excuse, and non-exculpatory defenses. It determines the majority American position among the fifty-two jurisdictions, and formulates statutory language for each defense that reflects that majority rule. The article also compares and contrasts the majority position to significant minority …
The Rise And Fall And Resurrection Of American Criminal Codes, 2015 University of Pennsylvania Carey Law School
The Rise And Fall And Resurrection Of American Criminal Codes, Paul H. Robinson
All Faculty Scholarship
This brief essay summarizes the virtues of the modern American codification movement of the 1960s and 70s, putting it in a larger global context, then describes how these once-enviable codes have been systematically degraded with thoughtless amendments, a process of degradation that is accelerating each year. After exploring the political dynamics that promote such degradation, the essay suggests the principles and procedures for fixing the current codes and, more importantly, structural changes to the process that could avoid the restart of degradation in the future.
From The New Deal To The New Healthcare: A New Deal Perspective On King V. Burwell And The Crusade Against The Affordable Care Act, 2015 The Catholic University of American, Columbus School of Law
From The New Deal To The New Healthcare: A New Deal Perspective On King V. Burwell And The Crusade Against The Affordable Care Act, Sarah Helene Duggin
Scholarly Articles
Americans describe the new healthcare system established by the Patient Protection and Affordable Care Act (“ACA”) as both a blessing and a nightmare. For millions of low and middle income Americans, the ACA offers access to health insurance they could not otherwise afford. The ACA’s opponents, however, view the new healthcare system as a threat to economic prosperity, an intrusion on personal liberty and a violation of the principles of federalism at the heart of our system of government. These same kinds of arguments were made more than eighty years ago in response to President Franklin Delano Roosevelt’s New Deal. …
The Subsidy Question In King V. Burwell, 2015 The Catholic University of America, Columbus School of Law
The Subsidy Question In King V. Burwell, Antonio F. Perez
Scholarly Articles
On the surface, King v. Burwell appears to be a simple case about statutory interpretation. In the Affordable Care Act (widely known as Obamacare), when Congress referred to the “State,” in the provision triggering federal subsidies to insurance consumers for purchases made from federally-authorized insurance providers selling federally-authorized insurance products, should the “State” be understood to refer to the federal market (i.e., exchanges) as well as “State” markets. Simple tools of statutory construction–namely, that Congress knew full well how to refer to a “federal” exchange and failed to do so–would seem to be sufficient to supply a result. It would …
The War On Drugs And Prison Growth: Limited Importance, And Limited Legislative Options, 2015 Fordham University School of Law
The War On Drugs And Prison Growth: Limited Importance, And Limited Legislative Options, John F. Pfaff
Faculty Scholarship
No abstract provided.
Federal Court Rulemaking And Litigation Reform: An Institutional Approach, 2015 University of Pennsylvania Carey Law School
Federal Court Rulemaking And Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang
All Faculty Scholarship
The purpose of this article is to advance understanding of the role that federal court rulemaking has played in litigation reform. For that purpose, we created original data sets that include (1) information about every member of the Advisory Committee on Civil Rules who served from 1960 to 2013, and (2) every proposal for amending the Federal Rules that the Advisory Committee approved for consideration by the Standing Committee during the same period and that had implications for private enforcement. We show that, beginning in 1971, when a succession of Chief Justices appointed by Republican Presidents have chosen committee members, …
Treating The Blue Rash: Win-Win Solutions And Improving The Land Exchange Process, 2015 SJ Quinney College of Law, University of Utah
Treating The Blue Rash: Win-Win Solutions And Improving The Land Exchange Process, Smith Monson
Utah Law Review
The history of public land laws from disposal to retention has created a fragmented ownership in the West. The school land grants led to a spotty pattern of state trust land ownership. This in turn creates conflict between the mandates of federal agencies—whose mandate is to protect environmentally sensitive areas—and state trust land authorities—whose mandate is to generate revenues for their beneficiaries. Both mandates promote important public interests.
Legislative land exchanges present potential win-win solutions for extricating state trust lands from within federal conservation areas, but they require a process that is too long and onerous. However, by improving the …
The Promise And Peril Of The Anti-Commandeering Rule In The Homeland Security Era: Immigrant Sanctuary As An Illustrative Case, 2015 University of Washington School of Law
The Promise And Peril Of The Anti-Commandeering Rule In The Homeland Security Era: Immigrant Sanctuary As An Illustrative Case, Trevor George Gardner
Articles
This brief narrative captures the second wave of “immigrant sanctuary”—a term used to describe the state and local government practice of restricting police departments from participation in immigration enforcement. The immigrant sanctuaries of the Homeland Security era are of unique significance given the ongoing dialogue among legal scholars regarding the significance of local law enforcement participation in national and domestic security administration after 2001, as well as the legal framework structuring cooperative security governance.
Despite the broad powers wielded by the federal government in security administration, the Supreme Court’s holding in Printz v. United States serves as a substantial check …
Choosing A Court To Review The Executive, 2015 Cleveland State University
Choosing A Court To Review The Executive, Joseph Mead, Nicholas Fromherz
Law Faculty Articles and Essays
For more than one hundred years, Congress has experimented with review of agency action by single-judge district courts, multiple-judge district courts, and direct review by circuit courts. This tinkering has not given way to a stable design. Rather than settling on a uniform scheme—or at least a scheme with a discernible organizing principle— Congress has left litigants with a jurisdictional maze that varies unpredictably across and within statutes and agencies.
In this Article, we offer a fresh look at the theoretical and empirical factors that ought to inform the allocation of the judicial power between district and circuit courts in …
The Model Penal Code's Conceptual Error On The Nature Of Proximate Cause, And How To Fix It, 2015 University of Pennsylvania Carey Law School
The Model Penal Code's Conceptual Error On The Nature Of Proximate Cause, And How To Fix It, Paul H. Robinson
All Faculty Scholarship
The Model Penal Code reconceptualized proximate cause to see it as part of the offense culpability requirements rather than as, in the traditional view, a minimum requirement for the strength of the connection between the actor's conduct and the prohibited result. That conceptual error, rare in the well-thought-out Model Code, invites misinterpretation and misapplication of the proximate cause provision, and can produce improper liability results. The failure is all the more unfortunate because the Model Code drafters did have an important improvement to offer in dealing with the challenging issue of proximate cause. Their jettison of fixed detailed rules in …
Making Sausage: What, Why And How To Teach About Legislative Process In A Legislation Or Leg-Reg Course, 2015 Indiana University Maurer School of Law
Making Sausage: What, Why And How To Teach About Legislative Process In A Legislation Or Leg-Reg Course, Deborah A. Widiss
Articles by Maurer Faculty
Although a rapidly growing number of law schools require students to take a course on legislation, many of these courses teach very little about how laws are actually enacted. This essay, written for a special issue of the Journal of Legal Education, argues that study of the legislative process helps students interpret and apply statutory language.
The essay surveys existing text books and supplemental resources that could be easily integrated into a Leg-Reg or Legislation class to explain modern Congressional procedure. The focus is the multiple distinct paths that bills may take through a legislative body and the written …
The Voting Rights Act In Winter: The Death Of A Superstatute, 2015 Indiana University Maurer School of Law
The Voting Rights Act In Winter: The Death Of A Superstatute, Luis Fuentes-Rohwer, Guy-Uriel Charles
Articles by Maurer Faculty
The Voting Rights Act ("VRA "), the most successful civil rights statute in American history, is dying. In the recent Shelby County decision, the U.S. Supreme Court signaled that the anti-discrimination model, long understood as the basis for the VRA as originally enacted, is no longer the best way to understand today's voting rights questions. As a result, voting rights activists need to face up to the fact that voting rights law and policy are at a critical moment of transition. It is likely the case that the superstatute we once knew as the VRA is no more and is …
Funding For Programs That Work: Lessons From The Federal Home Visiting Program, 2015 University of Missouri School of Law
Funding For Programs That Work: Lessons From The Federal Home Visiting Program, Philip G. Peters Jr.
Faculty Publications
Congress spends hundreds of billions of dollars each year on social programs. Many don’t work. Congress and the President have called for greater reliance on evidence-based programs. Thus far, however, only one major federal program conditions state access to formula-based federal funding on the use of evidence-based practices: the Maternal, Infant, and Early Childhood Home Visiting Program. In this Article, I examine the extent to which this initial effort has succeeded and conclude that Congress has taken a promising first step, but attainment of its objective will require more demanding proof standards than those contained in the current Home Visiting …
Equality, Centralization, Community, And Governance In Contemporary Education Law, 2015 Georgetown University Law Center
Equality, Centralization, Community, And Governance In Contemporary Education Law, Eloise Pasachoff
Georgetown Law Faculty Publications and Other Works
A response to Robert Garda, Searching for Equity Amid a System of Schools: The View from New Orleans, 42 FORDHAM URB. L.J. 613 (2015).
Social Purpose Corporations: The Next Targets For Greenwashing Practices And Crowdfunding Scams, 2015 Seattle University School of Law
Social Purpose Corporations: The Next Targets For Greenwashing Practices And Crowdfunding Scams, Tina H. Ho
Seattle Journal for Social Justice
No abstract provided.
Labor Unions And Title Vii: A Bit Player At The Creation Looks Back, 2015 University of Michigan Law School
Labor Unions And Title Vii: A Bit Player At The Creation Looks Back, Theodore St. Antoine
Book Chapters
During the debates over what became Title VII (Equal Employment Opportunity) of the Civil Rights Act of 1964, I was the junior partner of the then General Counsel of the AFL-CIO, J. Albert Woll. There were only three of us in the firm. The middle partner, Robert C. Mayer, handled the business affairs of the Federation and our other union clients. Bob was also the son-in-law of George Meany, president of the AFL-CIO, which gave us a unique access to Meany’s thinking. The Federation had only one in-house lawyer, Associate General Counsel Thomas Everett Harris. Tom was an aristocratic Southerner …
Campbell At 21/Sony At 31, 2015 University of Michigan Law School
Campbell At 21/Sony At 31, Jessica D. Litman
Articles
When copyright lawyers gather to discuss fair use, the most common refrain is its alarming expansion. Their distress about fair use’s enlarged footprint seems completely untethered from any appreciation of the remarkable increase in exclusive copyright rights. In the nearly forty years since Congress enacted the 1976 copyright act, the rights of copyright owners have expanded markedly. Copyright owners’ demands for further expansion continue unabated. Meanwhile, they raise strident objections to proposals to add new privileges and exceptions to the statute to shelter non-infringing uses that might be implicated by their expanded rights. Copyright owners have used the resulting uncertainty …
Who Invented The Single Tax Principle?: An Essay On The History Of Us Treaty Policy, 2015 University of Michigan Law School
Who Invented The Single Tax Principle?: An Essay On The History Of Us Treaty Policy, Reuven S. Avi-Yonah
Articles
In 1997, I wrote an article on the international tax challenges posed by the then-nascent electronic commerce, in which I suggested that the international tax regime is based on two principles: the benefits principle and the single tax principle. The benefits principle states that active (business) income should be taxed primarily by the country of source, and passive (investment) income should be taxed primarily by the country of residence. This is the famous compromise reached by the four economists at the foundation of the regime in 1923 and is not particularly controversial. It is embodied in every one of the …