Law Commons^™

Is Having Too Many Aggravating Factors The Same As Having None At All?: A Comment On The Hidalgo Cert. Petition, Chad Flanders

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While the Court does not dispute that at first blush the defendant's argument appears logical, it is disturbed by the prospect of how one determines the point at which the number of aggravating circumstances causes the death penalty statute to be generally unconstitutional. Is the Court to engage in some mathematical calculation as to who might be covered by the statute and who is not; and if so, what would be reasonable and logical factors to include in the formula? Can the Court arbitrarily declare that fifty aggravating circumstances is too many but forty-nine is permissible? Even assuming one could …

Dependent Contractors' In The Gig Economy: A Comparative Approach, Miriam A. Cherry, Antonio Aloisi

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Lawsuits around the misclassification of workers in the on-demand economy have ballooned in the United States in recent years. That is because employee status is the gateway to many substantive legal rights. Inresponse, some commentators have proposed an in-between hybrid category just for for the gig economy. However, such an intermediate category is not new. In fact, it has existed in many countries for decades, producing successful results in some, and misadventure in others. We use a comparative approach to analyze the experiences of Canada, Italy, and Spain with the intermediate category. In Italy, the quasi-subordinate category created an opportunity …

The Next Iteration Of Progressive Corporate Law, Matthew T. Bodie

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A wave of progressive corporate law scholarship in the late 1980s and early 1990s reimagined corporate law from the perspective of employees, consumers, and other stakeholders left behind by shareholder primacy. Almost thirty years later, it is time to revisit this literature and consider what progressive corporate law should be in the 21st Century. This essay argues for three changes: (1) a move to the theory of the firm as the underlying economic literature; (2) a focus on employees, rather than stakeholders more generally, and (3) an effort to change statutory and structural aspects of corporate law, such as board …

Religious Privilege To Discriminate As Religious Freedom: From Charitable Choice To Faith Based Initiatives To Rfra And Fada, Marcia L. Mccormick

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The movement for Lesbian, Gay, Bisexual, Transgender, Queer, Inter-sex, and Asexual (LGBTQIA) rights has had three main themes since the civil rights era: freedom from criminalization of relationships and harassment by police; protection from discrimination in employment, housing, public ac-commodations, and government services; and civil protections for familial re-lationships, like the right to marry.[1] Freedom from criminalization of inti-mate relationships was won in 2003, when the Supreme Court held that the federal constitution protected same-sex intimate conduct and that states could not make that conduct criminal,[2] and that decision accelerated the fight for civil protections for familial relationships. In May …

The Bipartisan Bayh Amendment: Republican Contributions To The Twenty-Fifth Amendment, Joel K. Goldstein

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It is appropriate that Senator Birch Bayh has been widely recognized as the author and person most responsible for the Twenty-Fifth Amendment. His work was indispensable, and he was helped by other Democrats and nonpartisan actors including the American Bar Association and John D. Feerick, among others. Yet the Amendment was also the product of bipartisan cooperation. Important provisions were based on work done during the administration of President Dwight D. Eisenhower, and Eisenhower and his Attorney General, Herbert Brownell, played important roles in supporting Bayh’s proposal as did other Republicans in and out of Congress. Republicans like Representative Richard …

Find Out What It Means To Me: The Politics Of Respect And Dignity In Sexual Orientation Anti-Discrimination, Jeremiah A. Ho

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This accompanying article considers the state of LGBTQ equality after the Supreme Court’s decision in Obergefell v. Hodges in 2015. Specifically, by examining this upsurge of social visibility for same-sex couples as both acceptance of sexual minorities and cultural assimilation, the article finds that the marriage cases at the Supreme Court — Obergefell and U.S. v. Windsor — shifted the framing of gay rights from the politics of respect that appeared more than a decade ago in Lawrence v. Texas toward a politics of respectability. The article traces this regression in Justice Kennedy’s own definition of dignity from Lawrence, where …

Workplace Freakonomics, Matthew T. Bodie

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Data analytics has revolutionized our economy, and employment is no exception. Sometimes called people analytics or HR analytics, the study of worker behavior and activity now includes the collection of massive amounts of data that is then crunched by algorithms looking for both expected and unexpected patterns. This work is akin to the "freakonomics" approach, which asks unusual questions and is prepared to find answers that may upset conventional wisdom. This paper explores the possibility of a "workplace freakonomics" approach to using big data in the workplace, and considers the legal and ethical ramifications for wide-ranging explorations of employee data.

Editor, "Health Care Law And The Rights Of Individuals With Disabilities", Elizabeth Pendo

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People with disabilities are vulnerable. They carry high risk for poor health and health outcomes. As a group, they experience social disadvantages such as poverty, underemployment and unemployment, isolation, and discrimination at a higher rate than the general population. They also face multiple barriers to quality health care and report poorer health status than people without disabilities. This Special Issue will explore the key health disparities and barriers to health care experienced by people with disabilities, and explore the legal, ethical, and social issues they raise. It will investigate the legal requirements of the Americans with Disabilities and other antidiscrimination …

Shattering 'Blight' And The Hidden Narratives That Condemn, Patricia Hureston Lee

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Tilting at windmills is an expression used to describe Don Quixote’s battle against perceived giants that everyone else sees merely as windmills. This expression can also describe the predicament of St. Louis Place property owners who fought against a combination of case law, statutes, governmental condemnation decisions and an unflattering narrative to save their property. In the end, St. Louis Place property owners might as well have been fighting windmills.

Since Berman v. Parker, legal scholars have challenged the definition of the term blight and the manner in which condemnation takings are used as revitalization tools in distressed communities. Attempts …

Exploitation In Medical Research: The Enduring Legacy Of The Tuskegee Syphilis Study, Ruqaiijah A. Yearby

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For forty years, the United States government allowed economically disadvantaged African American men to be exploited in the name of research, although the research could not generate any benefit to society. Specifically, from 1932 until 1972, government funded researchers enrolled economically disadvantaged African American men in the Tuskegee Syphilis Study to document the already known course of syphilis, which led to the men suffering sores, fever, hair loss, weight loss, headaches, paralysis, blindness, dementia, and death. In exchange for free meals, medical exams, and burial insurance, the researchers promised the men that they would provide treatment for their “bad blood,” …

Sterotypes As Channels And The Social Model Of Discrimination, Marcia L. Mccormick

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No abstract provided.

Preventing Neonatal Abstinence Syndrome Within The Opioid Epidemic: A Uniform Facilitative Policy, Jeremiah A. Ho, Alexander Rovzar

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The United States is currently in the midst of an opioid epidemic that has hit states in the southern New England regions particularly hard — with Massachusetts as one primary example. One of the many unfortunate results of the epidemic is a dramatic upsurge in cases of opioid dependency by expectant women that result in children born with Neonatal Abstinence Syndrome (NAS). NAS is a clinical syndrome that occurs when a newborn suffers withdrawal symptoms as a consequence of abrupt discontinuation of prenatal substance exposure. The expenses of treating and rehabilitating these drug-dependent newborns, predominantly shouldered by state taxpayers, are …

Law As Instrumentality, Jeremiah A. Ho

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Our conceptions of law affect how we objectify the law and ultimately how we study it. Despite a century’s worth of theoretical progress in American law—from legal realism to critical legal studies movements and postmodernism—the formalist conception of “law as science,” as promulgated by Christopher Langdell at Harvard Law School in the late-nineteenth century, still influences methodologies in American legal education. Subsequent movements of legal thought, however, have revealed that the law is neither scientific nor “objective” in the way the Langdellian formalists once envisioned. After all, the Langdellian scientific objectivity of law itself reflected the dominant class, gender, power, …

Punishment, Liberalism, And Public Reason, Chad Flanders

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The article argues for a conception of the justification of punishment that is compatible with a modern, politically liberal regime. Section I deals with what some have thought are the obvious social interests society has in punishing criminals, and tries to develop those possible interests somewhat sympathetically. Section II suggests that many of those reasons are not good ones if punishment is regarded (as it should be) from the perspective of political philosophy. Social responses to bad things happening to people cannot be grounded in controversial metaphysical views about what is good for people or what people deserve, but many …

Perspectives On The Tax Avoidance Culture: Legislative, Administrative, And Judicial Ambiguity, Henry Ordower

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Henry Ordower discusses the effect that legislating economic incentives through the tax system has on taxpayer behaviour and explores the resulting difficulty in drawing the line between legitimate and objectionable tax avoidance. He argues that while the attempts to separate the two types of tax avoidance – attempts such as enacting general anti-avoidance rules (GAARs) and following general principles of economic substance – may be partially successful, subsidies delivered through the tax system will inherently limit their effect. The lack of clear delineation between legitimate tax planning and objectionable tax avoidance enables an even firmer embedding of “the culture of …

Special Issue "Health Care Law And The Rights Of Individuals With Disabilities", Elizabeth Pendo, Guest Editor

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People with disabilities are vulnerable. They carry high risk for poor health and health outcomes. As a group, they experience social disadvantages such as poverty, underemployment and unemployment, isolation, and discrimination at a higher rate than the general population. They also face multiple barriers to quality health care and report poorer health status than people without disabilities. This Special Issue will explore the key health disparities and barriers to health care experienced by people with disabilities, and explore the legal, ethical, and social issues they raise. It will investigate the legal requirements of the Americans with Disabilities and other antidiscrimination …

Why Flexibility Matters: Inequality And Contract Pluralism, Jeremiah A. Ho

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In the decade since the Great Recession, various contract scholars have observed that one reason the financial crisis was so “great” was due in part to contract law—or, more precisely, the failures of contract law for not curbing the risky lending practices in the American housing market. However, there is another reason why contracts made that recession so great: contracts furthered inequality. In recent years, when economic inequality has become a dominant national conversation topic, we can see development of that inequality in the Great Recession. And indeed, contract law was complicit. While contractual flexibility and innovation were available to …

The Best Way Out Is Always Through: Changing The Employment At-Will Default To Protect Personal Autonomy, Matthew T. Bodie

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Employment at-will is the default rule of termination for the vast majority of American employment relationships. The rule creates a presumption—a strong one—that the contract for employment allows either party to terminate the contract at any point in time. Since its inception, this bright line rule has given way to carefully curated exceptions, primarily to protect against discrimination and retaliation. This Article proposes that state courts create a new exception to the at-will rule—or, perhaps more accurately, acknowledge an intricacy within the existing default. The personal-autonomy presumption would modify at-will to make clear that employers will not take any action …

Are Uber And Transportation Network Companies The Future Of Transportation (Law) And Employment (Law)?, Miriam A. Cherry

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Transportation network companies (“TNCs”) such as Uber and Lyft manage ridesharing platforms that have increased efficiency and convenience for many passengers. These platforms, however, have also opened the door to many legal and regulatory issues pertaining to their business practices, employment structures, and transportation law and policy. This article provides a perspective on the economic, social, technical, and political aspects of TNCs in two steps, focusing on transportation and employment. First, it examines the future of TNCs in transportation, noting that TNCs could do more in terms of environmentalism to live up to the promise of the “sharing” economy. Second, …

People Analytics And Invisible Labor, Miriam A. Cherry

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This article explores two trends in labor and employment law: people analytics and invisible labor. People analytics includes the practice of employers using quantitative data to make objective decisions regarding employees. Invisible labor includes work that is unrecognized because it involves emotional work, or that is hidden due to the intermediation of technology. The article then discusses the paradox of the two trends. As people analytics relies on data for decision-making, how can employers use data analytics if there are increasingly invisible components to work? The article considers solutions: should people analytics include components of hidden labor, explicitly recognize and …

Ex Parte Seizures Under The Dtsa And The Shift Of Ip Rights Enforcement, Yvette Joy Liebesman

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The ex parte seizure provision of the Defend Trade Secrets Act is another step in a long line of legislation that shifts the costs of private enforcement to the public, which already has a toehold in copyright and trademark law. The ex parte provision — which is not incorporated into any state trade secret law — relieves rights owners of two “burdens.” First, it relieves the trade secret owner of the burden of actually having to compete in the marketplace. Second, it relieves the trade secret owner of the burden of the costs associated with the discovery process of a …

Is Having Too Many Aggravating Factors The Same As Having None At All? A Comment On The Hidalgo Cert. Petition, Chad Flanders

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While the Court does not dispute that at first blush the defendant's argument appears logical, it is disturbed by the prospect of how one determines the point at which the number of aggravating circumstances causes the death penalty statute to be generally unconstitutional. Is the Court to engage in some mathematical calculation as to who might be covered by the statute and who is not; and if so, what would be reasonable and logical factors to include in the formula? Can the Court arbitrarily declare that fifty aggravating circumstances is too many but forty-nine is permissible? Even assuming one could …

Employment As Fiduciary Relationship, Matthew T. Bodie

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Under traditional agency law doctrine, employees are agents of their employers and owe an agent’s concomitant fiduciary duties. Employers, in turn, are merely principals and have no corresponding fiduciary duties. A new wave of thinking has unsettled this approach by concluding that only high-level employees have fiduciary responsibilities to their employers. Taking this controversy as a starting point, this Article reconceives the employment relationship as a mutual fiduciary relationship in which both employers and employees are fiduciaries of one another. Even though current law does not consider employers to be fiduciaries of their employees, employers have long had significant statutory …

A Human Rights Code Of Conduct: Ambitious Moral Aspiration For A Public Interest Law Office Or Law Clinic, Lauren Bartlett

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The standards regulating the decision-making and behavior of lawyers in the U.S. currently provide inadequate guidance for many of the ethical dilemmas that practicing attorneys face on a daily basis. Universal human rights principles—the concepts of morality underlying much of human rights law—provide more ambitious moral direction that lawyers can use to guide decision-making and behavior. This article discusses why additional aspirational goals are needed for the legal profession and explains how and why to apply universal human rights principles to lawyering in the U.S. The article goes on to introduce the idea of adopting a human rights code of …

Bridging The Gap: A Joint Negotiation Project Crossing Legal Disciplines, K. E. Powell, Lauren Bartlett

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This article discusses the creation and implementation of a cross-discipline negotiation simulation project designed by two law professors at Ohio Northern University Claude W. Pettit College of Law. The project bridged the gap between podium classes and clinical experience, exposing two separate groups of students to new subject areas. Professors Lauren E. Bartlett and Karen Powell brought together two distinct law classes, one doctrinal tax class and one pretrial litigation skills class, to exercise legal skills, and learn substantive and procedural law from their classmates, while acting as an attorney or a client in a simulated negotiation.

The Use Of Information And Communications Technology In Criminal Procedure In The Usa, Stephen C. Thaman

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In this chapter, the author discusses the three types of criminal surveillance and the subsequent data mining used to synthesize and compare the results of surveillance techniques. In addition, the author examines how the aforementioned procedures should be viewed in light of United States case law involving the privacy of American citizens.

Lessons From The Dramatists Guild For The Platform Economy, Matthew T. Bodie

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Are platform workers part of a firm or are they working as individual businesses? Are they providing their labor as part of a team, or do they hold on to individual capital throughout their transactions? This essay explores the question of employee versus independent contract through the specific examples of dramatists and screenwriters. Dramatists have chosen to conduct their work as separate artists; they maintain copyright over their work, and they retain control over its use. Screenwriters, on the other hand, work as part of a team; they hand over their copyright to the production company and cede control over …

Patent Venue Exceptionalism After Tc Heartland V. Kraft, Ana Santos Rutschman

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In late 2016, the Supreme Court granted certiorari in TC Heartland, LLC v. Kraft Foods Group Brands LLC,1 a case addressing the interpretation of the special patent venue and the general venue statutes. The case was brought by Heartland, a sweetener manufacturer organized as a limited liability company under Indiana law and headquartered in Indiana.2 In 2014, Kraft sued Heartland for infringement of three patents on liquid water enhancers. Although Kraft is headquartered in Illinois, the lawsuit was brought in the District of Delaware, where Heartland is not registered to do business and does not have a regular or established …

The Priority Review Voucher Program At The Fda: From Neglected Tropical Diseases To The 21st Century Cures Act, Ana Santos Rutschman

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The priority review voucher program at the Food and Drug Administration (FDA) was established in 2007 to incentivize research and development (R&D) in traditionally underfunded diseases.1 While shrouded in controversy and criticism, the program has recently been bolstered by the passage of the 21st Century Cures Act,2 which prevented the vouchers from sunsetting in late 2016 and furthered the overall scope of the program.3 As it reaches the end of its first decade, this Article discusses the impact of the program, with a focus on recent developments. The Article builds on literature suggesting that the voucher program has been ineffective …

Redefining The Intended Copyright Infringer, Yvette Joy Liebesman

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In the mid-1970s, Paul Edmond Dowling and William Samuel Theaker ran an “extensive bootleg record operation.”¹ The two men made unauthorized “phonorecords of unreleased [Elvis] Presley recordings. . . [using] material from a variety of sources, including studio outtakes, acetates, soundtracks from Presley motion pictures, and tapes of Presley concerts and television appearances.”² Dowling was a huge Elvis Presley fan, so he “handled the ‘artistic’ end of the operation, contributing his knowledge of the Presley subculture, seeking out and selecting the musical material, designing the covers and labels, and writing the liner notes.”³ Theaker, who lived in …