Law Commons^™

Discharging Equity: Harrington V. Purdue Pharma L.P. And The Validity Of Nonconsensual Third-Party Releases, Andrew Klauber

Duke Journal of Constitutional Law & Public Policy Sidebar

In September 2019, Purdue Pharma L.P. petitioned for bankruptcy in the Southern District of New York. Purdue, which the Sackler family had owned and operated for decades, developed and aggressively marketed addictive opioid products, contributing to the modern opioid epidemic. The tsunami of litigation arising from the opioid epidemic gave rise to claims against Purdue and the Sackler family estimated to total more than $40 trillion, causing Purdue to petition for Chapter 11 bankruptcy.

In Purdue’s plan of reorganization, it employed a nonconsensual third-party release to discharge claims against the Sackler family. Nonconsensual third-party releases controversially enjoin parties to a …

The Good, The Bad, And The Ugly Of Us Antitrust, Maurice E. Stucke

Scholarly Works

This article examines the bad and ugly as the US federal agencies seek to rejuvenate competition. The bad is legislative hiatus to update the antitrust laws for the digital economy. The ugly is when courts push their own economic beliefs, without regard for the congressional intent and aims of the antitrust laws. Regardless of who wins, the rule of law (and those most dependent on the antitrust law) suffer. To correct America’s market power problem, the article proposes restoring the constitutional balance, where the courts adjudicate, the legislature legislates, and enforcers enforce.

Relations Between Peer Influence, Perceived Cost Versus Benefits, And Sexual Offending Among Adolescents Aware Of Sex Offender Registration Risk, Cynthia J. Najdowski, Hayley M. D. Cleary, Paige M. Oja

Psychology Faculty Scholarship

A policy's general deterrent effect requires would-be offenders to be aware of the policy, yet many adolescents do not know they could be registered as sex offenders, and even adolescents who do know may still commit registerable sexual offenses. We tested whether peer influences shape the perceived costs/benefits of certain sexual offenses and, subsequently, registration policy's general deterrent potential in a sample of policy-aware adolescents. The more adolescents believed their peers approve of sexting of nude images, the more likely they were to have sexted. For forcible touching, having more positive peer expectations about sex and perceiving forcible touching as …

Optimizing Cybersecurity Risk In Medical Cyber-Physical Devices, Christopher S. Yoo, Bethany Lee

All Faculty Scholarship

Medical devices are increasingly connected, both to cyber networks and to sensors collecting data from physical stimuli. These cyber-physical systems pose a new host of deadly security risks that traditional notions of cybersecurity struggle to take into account. Previously, we could predict how algorithms would function as they drew on defined inputs. But cyber-physical systems draw on unbounded inputs from the real world. Moreover, with wide networks of cyber-physical medical devices, a single cybersecurity breach could pose lethal dangers to masses of patients.

The U.S. Food and Drug Administration (FDA) is tasked with regulating medical devices to ensure safety and …

Norms Of Public Argumentation And The Ideals Of Correctness And Participation, Frank Zenker, Jan Albert Van Laar, Bianca Cepollaro, Anca Gâță, Martin Hinton, Colin Guthrie King, Brian N. Larson, Marcin Lewinski, Christoph Lumer, Steve Oswald, Maciej Pichlak, Blake D. Scott, Mariusz Urbanski, Jean H.M. Wagemans

Faculty Scholarship

Argumentation as the public exchange of reasons is widely thought to enhance deliberative interactions that generate and justify reasonable public policies. Adopting an argumentation-theoretic perspective, we survey the norms that should govern public argumentation and address some of the complexities that scholarly treatments have identified. Our focus is on norms associated with the ideals of correctness and participation as sources of a politically legitimate deliberative outcome. In principle, both ideals are mutually coherent. If the information needed for a correct deliberative outcome is distributed among agents, then maximising participation increases information diversity. But both ideals can also be in tension. …

Time’S Up: Against Shortening Statutes Of Limitation By Employment Contract, Meredith R. Miller

Scholarly Works

Employers are increasingly adding clauses to contracts with employees that purport to shorten the statutes of limitation for employees to pursue claims against their employers (“SOL Clauses”). SOL Clauses are being imposed on employees in various stages of the contracting process. They have turned up in job applications, offer letters, arbitration clauses, employment agreements and employee handbooks. Where they have been enforced by the courts, the justification has been a prioritization of “freedom of contract” over any other policy concerns. This Article argues that, in the employment context, “freedom of contract” should not be prioritized over other competing concerns, which …

Navigating Between "Politics As Usual" And Sacks Of Cash, Daniel C. Richman

Faculty Scholarship

Like other recent corruption reversals, Percoco was less about statutory text than what the Court deems “normal” politics. As prosecutors take the Court’s suggestions of alternative theories and use a statute it has largely ignored, the Court will have to reconcile its fears of partisan targeting and its textualist commitments

Everybody To Count For One? Inclusion And Exclusion In Welfare-Consequentialist Public Policy, Noel Semple

Law Publications

Which individuals should count in a welfare-consequentialist analysis of public policy? Some answers to this question are parochial, and others are more inclusive. The most inclusive possible answer is 'everybody to count for one.' In other words, all individuals who are capable of having welfare - including foreigners, the unborn, and non-human animals - should be weighed equally. This article argues that 'who should count' is a question that requires a two-level answer. On the first level, a specification of welfare-consequentialism serves as an ethical ideal, a claim about the attributes that the ideal policy would have. 'Everybody to count …

Transition From The Informal To The Formal Economy: The Need For A Multi-Faceted Approach, Kamala Sankaran

Articles

The recent international attention paid to the formalization of the informal economy finds reflection in ILO Recommendation No. 204 concerning the transition from the informal to the formal economy and the Sustainable Development Goals (Target 8.3). There is great diversity within the categories of the informal sector, informal employment, and informal economy in India. This paper examines the category of the ‘informal economy’ as understood in international instruments as well as in international statistics and maps these onto legal categories recognized within Indian law. The categories of ‘employed’, ‘engaged’, and ‘work arrangement’ used in Indian laws, and their interpretation by …

The Road Ahead For Environmental Impact Assessment In India: Insights From Expansion In Coal Mining, Sneha Thapliyal, Meenakshi Kapoor, Krithika Dinesh

Articles

One of the most contentious changes proposed in the draft environmental impact assessment notification, 2020 in India is the circumvention of public consultations for the expansion of projects for up to 50% of their original capacity. Similar exemption from public hearing, albeit for 40% capacity expansion, has been permitted as a special case for the coal mining sector since 2017. The minutes of the meetings of the coal mining expert appraisal committee between August 2017 and January 2021, which reviewed the requests for coal mine expansion, are analysed herein. It was found that the expert appraisal committees had effectively sidelined …

Modeling Through, Ryan Calo

Articles

Theorists of justice have long imagined a decision-maker capable of acting wisely in every circumstance. Policymakers seldom live up to this ideal. They face well-understood limits, including an inability to anticipate the societal impacts of state intervention along a range of dimensions and values. Policymakers cannot see around corners or address societal problems at their roots. When it comes to regulation and policy-setting, policymakers are often forced, in the memorable words of political economist Charles Lindblom, to “muddle through” as best they can.

Powerful new affordances, from supercomputing to artificial intelligence, have arisen in the decades since Lindblom’s 1959 article …

Evaluation Of Risk Perception Of Smoking After The Implementation Of California’S Tobacco 21 Law, Joanna K. Sax, Neal Doran

Faculty Scholarship

Decreasing smoking initiation remains a public health priority. In 2016, California, in the United States, enacted the Tobacco 21 law, which raised the minimum age for the purchase of tobacco products from age 18 to age 21. This paper evaluates whether the enactment and implementation of the Tobacco 21 law changed how young adults perceive the risk(s) of smoking. Data were drawn from a cohort of emerging adults (n = 575) in California who were non-daily smokers at enrollment and followed quarterly for 3 years. Data were collected during 2015–2019. Piecewise multilevel regression models were used to test for changes …

The Political Economy Of Wto Exceptions, Timothy Meyer

Vanderbilt Law School Faculty Publications

In a bid to save the planet from rising temperatures, the European Union is introducing a carbon border adjustment mechanism-essentially a levy on imports from countries with weak climate rules. The United States, Canada, and Japan are all openly mulling similar proposals. The Biden Administration is adopting new Buy American rules, while countries around the world debate new supply chain regulations to address public health issues arising from COVID-19 and shortages in critical components like computer chips. These public policy initiatives-addressing the central environmental, public health, and economic issues of the day-all likely violate World Trade Organization (WTO) rules governing …

Are Vaccine Lotteries Worth The Money?, Christopher Robertson, K. Aleks Schaefer, Daniel Scheitrum

Faculty Scholarship

This research evaluates the effects of the twelve statewide vaccine lottery schemes that were announced as of June 7, 2021 on state vaccination rates. We construct a dataset that matches information on the timing and location of these lotteries with daily, county-level data from the U.S. Centers for Disease Control (CDC) on the cumulative number of people who have received at least one dose of an emergency-authorized Covid-19 vaccine. We find that 10 of the 12 statewide lotteries studied (i.e., all but Arkansas and California) generated a positive, statistically significant, and economically meaningful impact on vaccine uptake after thirty days. …

Menstrual Dignity And The Bar Exam, Margaret E. Johnson, Marcy L. Karin, Elizabeth Cooper

All Faculty Scholarship

This Article examines the issue of menstruation and the administration of the bar exam. Although such problems are not new, over the summer and fall of 2020, test takers and commentators took to social media to critique state board of law examiners’ (“BOLE”) policies regarding menstruation. These problems persist. Menstruators worry that if they unexpectedly bleed during the exam, they may not have access to appropriately sized and constructed menstrual products or may be prohibited from accessing the bathroom. Personal products that are permitted often must be carried in a clear, plastic bag. Some express privacy concerns that the see-through …

The Deregulation Deception, Cary Coglianese, Natasha Sarin, Stuart Shapiro

All Faculty Scholarship

President Donald Trump and members of his Administration repeatedly asserted that they had delivered substantial deregulation that fueled positive trends in the U.S. economy prior to the COVID pandemic. Drawing on an original analysis of data on federal regulation from across the Trump Administration’s four years, we show that the Trump Administration actually accomplished much less by way of deregulation than it repeatedly claimed—and much less than many commentators and scholars have believed. In addition, and also contrary to the Administration’s claims, overall economic trends in the pre-pandemic Trump years tended simply to follow economic trends that began years earlier. …

#Blacklivesmatter—Getting From Contemporary Social Movements To Structural Change, Jamillah Bowman Williams, Naomi Mezey, Lisa O. Singh

Georgetown Law Faculty Publications and Other Works

From the haters and hackers to propaganda and privacy concerns, social media often deserves its bad reputation. But the sustained activism that followed George Floyd’s death and the ongoing movement for racial justice also demonstrated how social media can be a crucial mechanism of social change. We saw how online and on-the-ground activism can fuel each other and build momentum in ways neither can achieve in isolation. We have seen in the Black Lives Matter (BLM) movement, and more specifically the hashtag #BlackLivesMatter, a new and powerful approach to using social media that goes beyond symbolic “slacktivism” and performative allyship …

Good Enough For Government Work? Life-Evaluation And Public Policy, Noel Semple

Law Publications

A life-evaluation question asks a person to quantify his or her overall satisfaction with life, at the time when the question is asked. If public policy seeks to make individuals’ lives better, does it follow that changes in aggregate life-evaluations track policy success? This paper argues that life-evaluation is a practical and philosophically sound way to measure and predict welfare for the purpose of analyzing policy options. This is illustrated by the successful argument for expanding state-funded mental health services in the United Kingdom. However, life-evaluations sometimes fail to adequately measure individual welfare. Policy analysts therefore must sometimes inquire into …

The Informed Consent Doctrine In Legal Malpractice Law, Vincent R. Johnson

Faculty Articles

The doctrine of informed consent is now deeply embedded into the law of legal ethics. In legal malpractice litigation, the doctrine holds that a lawyer has a duty to disclose to a client material information about the risks and alternatives associated with a course of action. A lawyer who fails to make such required disclosures and fails to obtain informed consent is negligent, regardless of whether the lawyer otherwise exercises care in representing a client. If such negligent nondisclosures cause damages, the lawyer can be held accountable for the client's losses.

Shifting the focus of a legal malpractice action from …

Authoring The Law, Shyamkrishna Balganesh

Faculty Scholarship

Copyright law denies protection to legal texts through a rule known as the “government edicts doctrine”. Entirely a creation of nineteenth century courts, the government edicts doctrine treats expression produced by lawmakers in the exercise of their lawmaking function as altogether uncopyrightable. Despite having been in existence for over a century, the doctrine remains shrouded in significant mystery and complexity. Lacking statutory recognition, the doctrine has come to be seen as driven by open-ended considerations of “public policy” that draw on the overarching importance of public access to laws. In its decision in Georgia v. Public.Resource.Org., Inc., the Supreme …

The Color Line: A Review And Reflection For Antiracist Scholars, Jasmine Gonzales Rose

Faculty Scholarship

In The Color Line: A Short Introduction, David Lyons provides a valuable service to students and academics in law, social sciences, and humanities by providing a concise history of the development and maintenance of race and racial order through law, policy, and discrimination in the United States. Lyons effectively outlines how race and racism were developed through these mechanisms in an effort to facilitate and maintain white supremacy.

Offenders And Sorn Laws, Amanda Agan, J.J. Prescott

Book Chapters

Chapter 7 describes what we know about the effects of SORN laws on criminal behavior. A coherent story emerges from this review: there is virtually no evidence that SORN laws reduce recidivism or otherwise increase public safety. The chapter first delineates the various ways registration and notification alter the legal environment not only for registrants but also for nonregistrants, the public, and law enforcement. There are many channels through which SORN laws might impact the frequency of sex offenses, including some that would produce an increase in overall offending. The chapter assesses these possibilities in light of a large body …

We Are...Community!, Michael A. Mogill

Faculty Scholarly Works

The concept of “community” has become increasingly important in law schools, relating both to our professionalism and the education of our students. During the recent celebration of our school’s 185^th anniversary of its founding, I addressed one of the school’s core values, that of “community”. This article explores that value and its meaning both within our law schools and the greater society, serving to advance the public interest and the interests of our law students, the legal academy and practicing attorneys everywhere. The message conveys is universal and contemporary, going well beyond our anniversary celebration. Ultimately, it can help …

Menstrual Dignity And The Bar Exam, Marcy L. Karin, Margaret E. Johnson, Elizabeth B. Cooper

Faculty Scholarship

This Article examines the issue of menstruation and the administration of the bar exam. Although such problems are not new, over the summer and fall of 2020, test takers and commentators took to social media to critique state board of law examiners’ (“BOLE”) policies regarding menstruation. These problems persist. Menstruators worry that if they unexpectedly bleed during the exam, they may not have access to appropriately sized and constructed menstrual products or may be prohibited from accessing the bathroom. Personal products that are permitted often must be carried in a clear, plastic bag. Some express privacy concerns that the see-through …

Efficient Ethical Principles For Making Fatal Choices, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Resource allocations of all kinds inevitably encounter financial constraints, making it infeasible to make financially unbounded commitments. Such resource constraints arise in almost all health and safety risk contexts, which has led to a regulatory oversight process to ascertain whether the expected benefits of major regulations outweigh the costs. The economic approach to monetizing health and safety risks is well established and is based on the value of a statistical life (“VSL”). Government agencies use these values reflecting attitudes toward small changes in risk to monetize the largest benefit component of regulations--that dealing with mortality risks. This procedure consequently bases …

The Impending Judicial Regulation Of Artificial Intelligence In The Administrative State, Aram A. Gavoor

GW Law Faculty Publications & Other Works

Artificial Intelligence (AI) algorithms are being deployed in executive branch agencies at a brisk pace and with no executive branch account for their use. The proliferation of AI in government raises civil rights concerns because it has been found—at a general level—to succumb to racial and gender biases when AI algorithms are incompetently or intentionally trained. Policy solutions have been put forth to mitigate the issue of such AI uses in government, some of which are in the process of being implemented. Despite these gains, the political branches of the federal government have limited time to act before their primary …

The Rich, Lucas A. Santos

English Department: Research for Change - Wicked Problems in Our World

The rise of the super rich dramatically rose in the 1980’s. The once dominant oil and gas sector was taken over by finance and technology overall. We are able to see a rise of these super rich, or the one percent, and even how quickly they were able to recover from the 2008 Recession. Now, the one percent are making continuous substantial gains in a current world, where a pandemic has struck and many are struggling. I talk about the use of public policy in order to regain this economic gap between the one percent and the rest of the …

Back To The Future: Creating A Bipartisan Environmental Movement For The 21st Century, David M. Uhlmann

Articles

With a contentious presidential election looming amidst a pandemic, economic worries, and historic protests against systemic racism, climate action may seem less pressing than other challenges. Nothing could be further from the truth. To prevent greater public health threats and economic dislocation from climate disruption, which will disproportionately harm Black Americans, people of color, and indigenous people, this Comment argues that we need to restore the bipartisanship that fueled the environmental movement and that the fate of the planet—and our children and grandchildren—depends upon our collective action.

The Firm-Perceived Contingencies To Political Strategy, Jessica Zeiss, Les Carlson

Association of Marketing Theory and Practice Proceedings 2020

Because assumptions that firm decisions to manage external politics revolve around traditional resources and capabilities (e.g., capital, technology) impede environmental management theories, this research explores additional antecedents, i.e., perceived uncertainty, firm political infrastructure. Study One qualitative data support ideas related to management as a matter of a firm’s perceptually constructed environment among deterministic firms. Study Two quantitative data find a strategic choice firm orientation is developed through management structures (e.g., specialized staff, routines), despite post-hoc analyses confirming both firm types operate in similar environments. Combined, these studies disconfirm traditional resources as a driver of firm political activity. Moreover, Study Two …

Empirical Evidence Of The Marketing And Corporate Political Activity Interface In Firm Strategy, Jessica Zeiss

Association of Marketing Theory and Practice Proceedings 2020

This qualitative research seeks to shed light on the manner in which marketing and corporate political activity (CPA) interface through senior-level managers acting as key informants. Relying on transcendental phenomenology (n = 41) and grounded theory (n = 402) methods, respectively, Study One uncovers a set of activities difficult to distinguish as either marketing or politics, i.e., legitimacy branding, with Study Two invalidated legitimacy branding as a traditional political strategy. Legitimacy branding’s key characteristics –1) branded reputations, 2) nonmarket targets, 3) for proactive control – position it as marketing-based CPA. While such strategy is generally consistent with previous findings, they …