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Full-Text Articles in Law
Algorithmic Personalized Wages, Zephyr Teachout
Algorithmic Personalized Wages, Zephyr Teachout
Faculty Scholarship
The paper explores algorithmically created personalized wages: what they are, what they mean, and what we can do about them. First, it establishes a taxonomy of five different forms of algorithmic wage differentiation: productivity-based wage adjustments, wages shifted through incentive bonuses and demerits, behavioral wages, dynamic wages, and wages shifted to conduct an experiment. It argues that these techniques are likely to spread from gig work to the formal employment context.
Second, it argues that the spread of these techniques has democratic implications. They will increase economic and racial inequality. They will harm labor solidarity. Perhaps most importantly, they put …
Hardball Vs. Beanball: Identifying Fundamentally Antidemocratic Tactics, Jed H. Shugerman
Hardball Vs. Beanball: Identifying Fundamentally Antidemocratic Tactics, Jed H. Shugerman
Faculty Scholarship
The “constitutional hardball” metaphor used by legal scholars and political scientists illuminates an important phenomenon in American politics, but it obscures a crisis in American democracy. In baseball, hardball encompasses legitimate tactics: pitching inside to brush a batter back but not injure, hard slides, hard tags. Baseball fans celebrate hardball. Many of the constitutional hardball maneuvers previously identified by scholars have been legitimate, if aggressive, constitutional political moves. But the label “hardball” has been interpreted too broadly to include illegitimate, fundamentally undemocratic tactics. I suggest a different baseball metaphor for such tactics: beanball, pitches meant to injure and knock out …
Fiduciary Law's Lessons For Deliberative Democracy, David L. Ponet, Ethan J. Leib
Fiduciary Law's Lessons For Deliberative Democracy, David L. Ponet, Ethan J. Leib
Faculty Scholarship
One of the ascendant understandings of democracy in contemporary political theory is that democratic societies ought to be deliberative The precise requirements for "deliberative democracy" are contested both as a matter of normative theory and institutional design; but most deliberative democrats see deliberation as essential to the legitimation of decision-making within the polity. Yet deliberative democrats have expended most of their efforts mapping what deliberation should look like at two different levels of decision-making: the deliberation among citizens themselves in exercises of direct and participatory democracy - and the deliberation among legislators or other official actors within the organs of …
A Comparison Of Criminal Jury Decision Rules In Democratic Countries, Ethan J. Leib
A Comparison Of Criminal Jury Decision Rules In Democratic Countries, Ethan J. Leib
Faculty Scholarship
This paper furnishes jury system information about the twenty-eight democracies (excluding the United States) that have been consistently democratic since at least the early 1990s and have a population of five million people or more (with allowance for Mexico and South Africa). I describe general rules that do not always apply to every crime in every context. In the United States, for example, we tend to use a randomly-selected jury of twelve people that sits for a single case; laws generally require unanimity to convict and unanimity to acquit. Failure to reach unanimity results in a “hung” jury, with the …
Tinkering With Torture In The Aftermath Of Hamdan: Testing The Relationship Between Internationalism And Constitutionalism , Catherine Powell
Tinkering With Torture In The Aftermath Of Hamdan: Testing The Relationship Between Internationalism And Constitutionalism , Catherine Powell
Faculty Scholarship
Bridging international and constitutional law scholarship, the author examines the question of torture in light of democratic values. The focus in this article is on the international prohibition on torture as this norm was addressed through the political process in the aftermath of Hamdan v. Rumsfeld. Responding to charges that the international torture prohibition -- and international law generally -- poses irreconcilable challenges for democracy and our constitutional framework, the author contends that by promoting respect for fundamental rights and for minorities and outsiders, international law actually facilitates a broad conception of democracy and constitutionalism. She takes on the question …
Democracy And Feminism , Tracy E. Higgins
Democracy And Feminism , Tracy E. Higgins
Faculty Scholarship
Although feminist legal theory has had an important impact on most areas of legal doctrine and theory over the last two decades, its contribution to the debate over constitutional interpretation has been comparatively small. In this Article, Professor Higgins explores reasons for the limited dialogue between mainstream constitutional theory and feminist theory concerning questions of democracy, constitutionalism, and judicial review. She argues that mainstream constitutional theory tends to take for granted the capacity of the individual to make choices, leaving the social construction of those choices largely unexamined. In contrast, feminist legal theory's emphasis on the importance of constraints on …