Over the past few decades, public concern for the interests of animals has grown. This concern is rooted in the capacity of animals to feel. Animal sentience research has made clear that many animals are sentient; they do experience pain and accordingly, human treatment towards them matters. State legislatures acknowledge this to varying degrees through the enactment of legislation that regulates and restricts human treatment of animals. This acknowledgement, however, is only implicit in most jurisdictions. This Article contends that the explicit recognition of animal sentience in animal welfare legislation would better serve to protect the interests of animals. In this respect, it advocates for animal welfare laws in all United States jurisdictions to expressly recognize animal sentience. While animal sentience is obvious to most humans, expressly acknowledging such in legislation will have important consequences, including implications for statutory interpretation of animal welfare legislation, providing animal welfare legislation with a scientific foundation, and promoting the intrinsic worth of animals. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426 I. CONTEXT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429 A. Sentience Within the Rights Versus Welfare Debate . . 429 B. The Meaning of “Sentient” . . . . . . . . . . . . . . . . . . . . . . . . . 430 C. Scientific Evidence that Animals are Sentient . . . . . . . . 432 1. Physical Pain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 433 2. Psychological Pain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 437 D. Legal Recognition of Animal Sentience . . . . . . . . . . . . . . 440 1. Implicit Recognition . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442 2. Express Recognition . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444 II. CURRENT LAW IN THE US . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446
Over the ensuing 50 years from the promulgation of § 402A, products liability in general has seen a retrenchment from strict liability. The Restatement (Third) of Torts: Products Liability openly adopted negligence principles for design and warning claims, and created an entirely new provision to protect pharmaceutical manufacturers even more robust than 402A's comment k. Regarding pharmaceutical liability, the trend away from any liability at all has been remarkable. In the face of this legal history, and in spite of it, this Article proposes taking a fresh look at strict liability for pharmaceutical injuries. What has changed since the adoption of the Products Liability Restatement, which endorsed a virtual immunity from liability for pharmaceuticals? Such a suggestion is likely to be met with cries of “absolute liability” and concern for a chilling effect on innovation for much needed therapeutic treatments. There are three primary reasons this Article proposes a reassessment for strict tort liability in this context. First, the expansive federal preemption doctrine that the United States Supreme Court has fashioned in the last decade defeats almost all state tort liability for pharmaceuticals, particularly for generic pharmaceuticals which comprise over 85 percent of the prescriptions in this country. Second, both the pre-marketing approval process and the post-marketing risk assessment regulatory structures fundamentally cannot adequately identify, communicate, and reduce adverse drug events and, consequently, those events are increasing and likely to continue to do so. Third, the structure of pharmaceutical marketing, increasingly unregulated, has influenced prescribing practices in ways that compound the likelihood and severity of adverse drug events. These trends in pharmaceutical marketing practices, coupled with the systemic limitations on information-gathering and response in the regulatory system, has created a demand for pharmaceuticals that increases the likelihood of adverse drug events with no meaningful mechanism to identify and reduce the risks presented. While the legal landscape has become barren to the use of tort liability to compensate for the inevitable risk of adverse drug effects, the medical care landscape has become more fertile for those side effects to occur. The convergence of these trends supports a reevaluation of the use of strict, non-fault liability on producers of pharmaceuticals for the harms their products cause.
Direct-to-consumer genetic testing (DTC-GT) companies have proliferated in the past several years. Based on an analysis of genetic material submitted by consumers, these companies offer a wide array of services, ranging from providing information about health and ancestry to identification of surreptitiously-gathered biological material sent in by suspicious spouses. Federal and state laws are ambiguous about the types of disclosures these companies must make about how the genetic information they obtain is collected, used, and shared. In an effort to assist in developing such laws, this Article reports a survey of the privacy policies these companies purport to follow. It canvasses ninety DTC-GT companies operating in the United States and provides a detailed analysis of whether and to what extent those policies inform consumers about how their genetic information will be used and secured, with whom it will be shared, and a host of other issues. Using the Federal Trade Commission’s articulation of the Fair Information Practice Principles and the agency’s proposed Privacy Framework as the baseline, we conclude that most policies fall well short of the ideal.
Federal conspiracy law has a problem. It is sometimes easier to put someone in prison for twenty years than it is to put her away for five—for the very same crime. This situation stems from a bright-line rule to which the Supreme Court has long adhered: when Congress wants an overt act requirement, Congress will explicitly so specify. Consider the resulting status quo. The general federal conspiracy statute requires proof of an overt act. Its maximum sentence is five years. In contrast, the Hobbs Act contains no overt act requirement, yet it provides for a maximum sentence of twenty years when a defendant conspires to violate the Act. The problem becomes clear: if a defendant is charged under both statutes for the same crime, it is easier to imprison her for twenty years than for five. Other statutes have text that mirrors the Hobbs Act’s, expanding the problem’s scope. This Essay attempts to show that the Court’s explicit-language rule should not apply to the Hobbs Act. It demonstrates that Congress codified a baseline overt act requirement in the general conspiracy statute. Further, this Essay argues that the Hobbs Act’s legislative history undermines the Court’s rule. It thus concludes that the Act provides an ideal vehicle to revisit that rule.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 I. WHOEVER HAS THE GOLD MAKES THE RULES . . . . . . . . . . . 96 A. Beyond the Grave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 B. Incentive Trusts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 IL THEY CAN'T TAKE IT WITH THEM, BUT THEY WoN'T LET IT Go . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 A. Inflexibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 1. Predicting the Future: Specificity vs. Flexibility.. 101 Prepare for Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 B. Public Policy Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 C. Unintended Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . 107 1. The Bedonie Treadmill . . . . . . . . . . . . . . . . . . . . . . . . . 108 2. Bait and Switch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 D. Motivation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 III. WHAT WouLD You Do WITH MILLIONS OF DOLLARS? . . . 114 IV. THE ANSWER: HBT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 A. Structure and Drafting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 B. HBTs in Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 1. Flexibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 2. Public Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 3. Unintended Consequences . . . . . . . . . . . . . . . . . . . . . . 122 4. Motivation ..................................... 123 5. Parenting First . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 6. Later Rather Than Sooner . . . . . . . . . . . . . . . . . . . . . . 124 7. Discuss Family Expectations .................... 124
Post-industrial economies are at a crossroad. On the one hand countries are dealing with the crisis of unemployment and underemployment, developing strategies to increase labor market participation of all adults, and increase productivity. On the other hand, the same countries are responding to demographic concerns regarding an aging population and decreased birth ratios. These concerns, coupled with a growing demand for gender equality in the labor market, and better work/family balance, lead to the development of new tax and welfare policies around child care, as well as restructuring the workplace to fit the needs of workers with familial care obligations. A storm of new legislation, regulation and voluntary initiatives attempting to address child care, parental leaves, and the structure of the work day, are sweeping through developed economies, with significant innovation, variation, and experimentation. The feminist policy and scholarly debate around these policies seem to presume that market based mechanisms for the promotion of gender equality are inferior to state based mechanisms, and that generally, those who care about gender equality should be suspicious of turning to the market for solutions, because it is an institution that tends to replicate rather than ameliorate gender inequality. In this paper we seek to question market aversion within these debates. In particular, we ask whether the theoretical premise of the discussion - the harsh dichotomy between market and state - is plausible at all, and particularly at the current moment in the development of the regulatory state. Using examples from the fields of welfare, tax and employment law from a variety of post-industrial “developed” economies, we seek to destabilize the dichotomy and explore the wide array of policy tools on the spectrum between pure market-based policies and strictly state provided benefits. We offer a systemic analysis that exposes the myriad possible legal and institutional configuration available to policy makers. Our analysis is grounded in an explicit and multifaceted discussion of the normative considerations that underlie policies aimed as regulating both the labor market and care work: namely, Distributive Justice (including gender equality); Efficiency; and Autonomy (including personhood and community). Part I of the article offers a rich account of each of these normative considerations and explains the complex (both positive and negative) effects of both market and state-governed mechanisms on promoting them. Good policy, we argue, should not sweepingly reject market mechanisms nor should it abandon state governed instruments but rather mix and match the advantages of both state and market mechanisms focusing on their potential real-life consequences. We use some examples from our comparative study in order to illustrate the potential for such hybrid mechanisms. We model the complex implications, seemingly technical legal mechanisms entail, and explain the unique mix of normative goals supported by each mechanism. In part II, building on the previous part, we offer a framework to analyze and develop policy that promotes gender equality in the family and the market, in the fields of tax, welfare and employment. In order to methodically decipher the different mechanisms available, and to be able to match them with the normative goals, as well as creatively think about possible institutional options, we build on existing literature to offer a typology of policy solutions along four mechanism-design criteria: (1) universal v. Selective (2) fixed sum v. income dependent (3) cash transfers v. in kind services (4) which institution provides the service (family, state, market, civil society). Each of these criteria reflect tensions between the underlying normative goals, and each represents a distinction between ideal type mechanisms that can, and we argue that should be, broken up and understood as a spectrum of modular tools to be mixed and matched in order to support varying combinations of normative ends.
In this Article, I examine the ethical implications of the impact of what I term globordered markets—that is, the markets created by the intense interactions between national borders and globalization—on families. While the interrelations between “the family” and “the market” have been acknowledged ever since Engels pointed to the connection between private property and the patriarchal family, and more recently in the rich discussions over work—family balance, there remains much more to be explored in this moral domain. In particular, very little scholarly attention has been given to how families are affected by both the global market and the impact of the global human rights discourse on local markets—and to the ethical concerns these effects raise. I will analyze two important phenomena to demonstrate my argument that any discussion on the ethical challenges of the market must include deep empirical understanding and complex normative contemplation regarding the impact of bordered globalization on families. Both phenomena relate to the question of meeting the basic needs of children in the poorest parts of the world. The first example is the phenomenon, relatively new in its scope and intensity, of parents who leave for another country without their children, to send remittances back home. The second example is that of child labor, common in many parts of the Global South. While the former is constructed by international law, as well as by scholastic and broader discourses, as ethically non-problematic, the latter is conceived and fought-against by the international community as an evil that must be eliminated. By looking at empirical studies of both, through an ethic of parent–child relations that places parental nurturing care at its core, I argue that the judgmental gaze should be reversed. I will suggest in this Article that parental emigration indeed is very problematic and that ignoring its impact on the children left behind stands in sharp contradiction of the norm of parental involvement advanced in the Global North. As to child labor, I will contend that, when shaped as a
Independent regulatory agencies face increasing pressure to conduct high-quality economic analysis of regulations, similar to the regulatory impact analysis conducted by executive branch agencies. Such analysis could be required by evolving judicial doctrines, regulatory reform statutes, or executive order. This article explains how regulatory impact analysis can contribute to smarter regulation, documents the current low quality of such analysis at many independent regulatory agencies, and offers a blueprint that independent agencies can use to build their capacity to conduct objective, high-quality analysis.
This essay first examines various conceptions of promissory obligation, which suggest a range of possible benefits associated with promising. Theories of temporally extended practical rationality suggest that to obtain benefits of this kind, it may be rational for a promisor to treat his or her promise as binding. The difficulty is that, whatever practical and normative benefits binding promises may have, it will not always be epistemically rational for the promisor to perform. Thus, to the extent that markets rely on binding promises, they rely on an element of irrationality in human decision-making.
In this paper, I take stock of some leading attempts to drive a wedge between distinctively market reasoning and practical (including moral) reasoning. Although these attempts focus on different normative foundations — the epistemology of market interaction, the autonomy of its participants, the stability-enhancing quality of markets, and the authority of democratic decision-making — they are of a piece insofar as they seek to trivialize the role of private responsibility for realizing the demands of morality and justice. Essentially, they seek to insulate, at least to an important extent, the market practice of doing well from the demands of doing right. I argue that they each fail, and that their respective failures motivate the pursuit of a more successful conception of the interaction between markets and morality. I argue that the key to developing this conception is law and, in particular, the legal forms of interaction that lie at the center of economic markets. Rather than merely facilitating any number of desirable goals, these legal forms construct the moral landscape within which market participants act. This observation opens the door for a better account of the ineliminable place of moral responsibility in and around the market.
Direct-to-consumer genetic testing (DTC-GT) companies have proliferated in the past several years. Based on an analysis of genetic material submitted by consumers, these companies offer a wide array of services, ranging from providing information about health and ancestry to identification of surreptitiously-gathered biological material sent in by suspicious spouses. Federal and state laws are ambiguous about the types of disclosures these companies must make about how the genetic information they obtain is collected, used, and shared. In an effort to assist in developing such laws, this Article reports a survey of the privacy policies these companies purport to follow. It canvasses ninety DTC-GT companies operating in the United States and provides a detailed analysis of whether and to what extent those policies inform consumers about how their genetic information will be used and secured, with whom it will be shared, and a host of other issues. Using the Federal Trade Commission’s articulation of the Fair Information Practice Principles and the agency’s proposed Privacy Framework as the baseline, we conclude that most policies fall well short of the ideal.
INTRODUCTION................................................. 127 I. GENDER IDEOLOGY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 A. The Binary System of Gender....................... 128 B. The Medicalization of the Binary System of Gender.. 131 C. Courts' Reliance on the Medicalized Binary System of Gender.......................................... 134 D. Toward a Self-D efinition Model of Gender . . . . . . . . . . 136 II. LEGAL PROTECTIONS FOR PEOPLE WHO ARE TRANSGENDER AND INCARCERATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 A. D isproportionate Representation of Transgender People in the Criminal Justice System............... 137 B. Housing Classifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 C. Healthcare......................................... 142 D. Sexual Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 E. Solitary Confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 CONCLUSION................................................... 158
There are many jurisdictions in the world where there is no legislation or case law that addresses surrogacy. In those jurisdictions, people freely enter into contracts for the sale and purchase of gestational care (defined below). Eighteen U.S. states and India, as well as at least forty countries, have no legislation or case law that permits, prohibits, or regulates surrogacy. This regulatory lacuna typically occurs either because of a failure to reach a consensus on legislation about the issue or sheer neglect of it.
Human dignity is not a freestanding constitutional right, but it is a strongly held constitutional value. To this point, however, human dignity has had no place in statutory interpretation. This Article argues that courts should create a dignity canon of interpretation, which would operate as a clear statement rule. If laws are to be construed to limit individual dignity, the legislature must expressly this plainly. By conducting re-dos of three Supreme Court cases in the areas of civil rights, criminal procedure, and personal health, the Article shows the promise of the dignity canon.
Preparation of this Article was supported in part by the Martha E. Foulk Fellowship awarded to Rebecca K. Helm, by National Science Foundation award SES-1536238: “Quantitative Judgments in Law: Studies of Damage Award Decision Making” to Valerie P. Hans and Valerie F. Reyna, by a grant from Cornell University’s Institute for Social Sciences to Valerie P. Hans and Valerie F. Reyna, and by National Institute of Health (National Institute of Nursing Research) award RO1NR014368-01 to Valerie F. Reyna.
Property shapes the way we talk about our communities and ourselves. It also, unintentionally, shapes the way we talk about the poor. Within property, the doctrine of waste reinforces notions of autonomy, privacy, and boundary-making for property owners, while leaving those without property searching for other ways to assert these self-defining protections. Likewise, nuisance assists owners’ participation in their communities by dictating when individuals must account for harms their property use causes to neighbors. The law, however, provides few legal remedies for poor persons who are harmed by owners’ sanctioned use of property. Through the language of ownership, property doctrines facilitate special benefits for those with property, while forcing those outside of property to seek other means to assert similar benefits. Owners -- landlords of gap rentals, public housing authorities, and cities -- often treat their poorest residents as problems to be managed rather than residents deserving autonomy and community. Housing units are destroyed, families are displaced, and homeless are forced further out of sight. The doctrines and rules that encourage these outcomes focus on the improper, the impaired, or the imperfect instead of facilitating discourse about how living environments promote human flourishing for these residents. In this way, our property system’s rules and language create a class of persons who are under-propertied, under-housed, and under-valued.
Digital media and software have broken copyright law. Although a consumer experiences the same work when reading a book printed on paper or copied onto an e-reader, the applications of copyright law to traditional and digital media usage have diverged dramatically because digital works are frequently copied in the course of their use. Copyright theorists have struggled with how to craft legal rules that would align rights in traditional and digital works, frequently proposing new exceptions for digital uses or interpretations of fair use. But there is a more elegant path forward, which has been too difficult to contemplate previously because the law that needs to be changed is synonymous with copyright itself. The reproduction right — the copy right — should be eliminated. This essay makes the case for eliminating the reproduction right entirely and for augmenting other exclusive authors’ rights in exchange. Although superficially radical, the elegant results of reform render the suggestion worth contemplating. Moreover, despite the political infeasibility of reforming copyright in the immediate future, understanding potential alternatives can prepare us to seize other opportunities for reform when they arise.
