Previous research suggests that judges make more favorable rulings for female litigants in family court cases and in criminal sentencing. Although such trends might arise from real differences between men and women, they might also arise from stereotypes that cause judges to favor mothers over fathers and to show leniency towards female defendants. We tested for benevolent sexism among 714 sitting trial judges with two experiments in which we presented judges with hypothetical cases in which we only varied the gender of the litigants. In a family court case, we found judges were more apt to grant a request to allow relocation by a mother than by an otherwise identical father. In a criminal case, we found that judges sentenced a female defendant to less prison time than an otherwise identical male defendant. The results demonstrate that judges engage in benevolent sexism towards female litigants in common legal settings.
It seems almost impossible to find a coherent theory within the Supreme Court’s Establishment Clause jurisprudence. This case law has been called an incomprehensible thicket. Contrary to this perception, this Article asserts that a certain subset of this jurisprudence — the Court’s precedent on religious activities within public schools — is neither incoherent nor impenetrable. Instead, these decisions are unified by their fidelity to Madisonian neutrality, which was first articulated in the school law case that began the Court’s modern Establishment Clause doctrine. Through the identification of the Framer’s fidelity within this subset of school law, this Article reclaims the thicket theory pejoration as a constitutionally correct and significantly beneficial theory that embodies the original purposes of the First Amendment. In doing so, this Article demonstrates that the Court’s educational Establishment Clause jurisprudence has formed a protective thicket around American schoolchildren — a political minority that merits special constitutional shielding from the divisive forces of state-established religion. It is a positive thicket that safeguards the freedom of conscience of all American schoolchildren, no matter their beliefs, while balancing respect for their autonomy to engage in constitutionally protected religious practices. Finally, it is an instructional thicket that upholds democratic principles by preserving respect for church and state. These educative results align with the crucial importance of the public school as the preparatory situs for children’s participation in our constitutional democracy. Consequently, the Court should continue to use this approach to zealously defend the fundamental values of the First Amendment in America’s public schools.
Serious questions are now being raised about the viability of American capitalism and the American property regime that enables capitalism to exist and thrive virtually without constraint. Those questions arise in the context of global problems of extremes that threaten the integrity of Earth’s biophysical systems and undermine the stability of political and social systems. Western-style property regimes stress the importance of unrestrained marketplace transactions and the decision making of self-interested property owners. The American approach, in particular, legitimates the power of property owners to decide how and when to use and manage their property. The approach assumes that each owner makes rational decisions, maximizing the owner’s welfare and therefore the welfare of society. The problems of extremes now developing on a global level, however, provide important feedbacks that call into question the validity of the assumptions and norms of the American approach. Can the core norms and principles of western-style property regimes adapt to curb excesses inherent in the dominant form of capitalism? Answering this critical question requires an understanding of the structure of property that enables property law to evolve, react to changing conditions, and take into account new information and knowledge about current physical and social realities. The key to taking this step is to view property as a system with a complex structure and embedded norms and operating principles that fail to reflect current biophysical and social conditions.
In this paper we evaluate the potential for California’s so-called civil grand juries to detect substandard prison conditions and maltreatment of inmates and make recommendations for improvement. We describe relevant reports by grand juries between 2007-17 and evaluate the effectiveness of these in improving conditions in a representative sample of counties. We conclude that the civil grand jury is a potentially effective tool for oversight but its effectiveness is hampered by competing duties, variable investigative methodologies, and lack of clear objectives for performance of their statutory duties.
Since the early days of the Coronavirus pandemic, unemployment rates leapt to the highest they have been since 1975. Congress passed the CARES Act in March 2020, a $2 trillion relief package, offering augmented unemployment relief not only to employees but also to the self-employed, including gig workers. The Families First Coronavirus Response Act (FFCRA) was passed to provide sick leave in the form of tax credits that also extended to the self-employed. Beyond the governmental responses, Platform companies offered new limited relief to their workers in the form of sick leave, even as they continue to classify them as freelancers. Mass layoffs alongside mass hiring present immense legal challenges even without a health pandemic. The COVID-19 crisis adds the challenges of health and safety, social distancing, risk management, and telecommuting. This essay written for a symposium on Covid-19 and the Law examines employment law and employee classification in relation to the contemporary realities of the labor market during the Coronavirus pandemic. As business models and market structures are constantly changing and shifting, one thing remains the same: how we classify the work relationship carries enormous weight in determining the rights and duties of market actors. This essay presents the ways the COVID-19 pandemic has exposed the vulnerabilities of gig workers and the irrationalities of rigid classification tests that have always been the Achilles heel of the field of employment and labor law. The essay explores pandemic related economic benefits that have been extended to freelancers and considers the ways the pandemic reveals the nature (and future) of the gig economy. Part I explains the federal and state efforts to expand unemployment benefits to freelancers. It describes how the CARES and FFCRA Acts have expanded the emergency unemployment benefits, paid sick leave, and expanded family and medical leave to freelancers, and yet the funding and the operational details of these programs are still contested. Part II describes the continued service of gig workers during the pandemic, especially in the delivery sector, and how classification as freelancers has left many without medical leave rights, health and safety rights, and other protections. Drawing on my recent research, Part III argues that the fight over employee classification is a red herring, as it misses the point about what public protections ought to be provided to all workers in the labor market. I propose that certain employment and labor protections should be extended to non-employees whether they work on the digital platform or offline in more traditional settings. I further argue that our social welfare system should not be so heavily linked to the labor market.
COVID-19 has changed our legal universe. Many states are responding by issuing stay-at-home orders, and as cases rise, may have to prohibit gatherings again. One issue states and courts have to grapple with is what is the relationship between stay-at-home orders and religion. Stay-at-home orders that require closing down churches may be challenged as violating the First Amendment’s guarantee of religious freedom. Under our current jurisprudence, these cases may be handled under a highly deferential standard or under strict scrutiny – depending on the specific order in question, as well as on whether the state has a RFRA. We recommend, in either case, that orders be carefully crafted to impose the minimum prohibitions needed to prevent outbreaks, according to the situation, and that crafters address, generally, the specific things that increase the risk of transmission – for example, prohibit gatherings indoors that are more than in passing, rather than specific activities. We also recommend that crafters avoid drawing value-laden lines (e.g. deciding whether gun stores are more important than churches). Finally, we suggest that courts should rule in ways that support drawing reasonable lines and providing essential information. A separate question is whether stay-at-home orders that exempt churches violate the Establishment Clause’s separation of church and state; we explain why the answer is, probably, no.
Although COVID-19 mercifully seems to affect children less severely than adults,2 children are far from immune from the impacts of the virus. Public health orders closing schools and businesses, cancelling events, and keeping children at home have been disruptive and distressing to many children and families. But for children who rely on government entities for protection, care, custody, and services, the effects of the public health orders can be devastating. COVID-19 and the response to it has serious implications for the safety, well-being, and development of these vulnerable children— those within the child welfare, juvenile justice, and special education systems. All three groups consist of children to whom the state has legal obligations.3 4 Additionally, all three groups consist disproportionately of children of color, a reality being brought to the forefront in the context of this pandemic and beyond.
What powers do states have to protect the public from a public health emergency? For most of the last 100 years, the protracted and robust debate about that question has been largely hypothetical. Although courts had occasion to assess the scope of state public health powers in cases concerning HIV, measles, vaping, and Ebola, to offer just a few examples, until COVID-19, no court in the past century had to determine the full reach of state public health emergency powers during a widespread and highly lethal pandemic. Nor had any court been asked to reconcile contemporary understandings of constitutional rights with the states’ need to protect its residents from such a pandemic. In the spring of 2020, numerous state and local courts, including the U.S. Supreme Court, were presented with just those challenges. As cases of COVID-19 spiked in many American communities, governors and local officials across the country used their emergency powers to impose a range of social distancing orders (SDOs), shuttering businesses, restricting religious services, requiring the wearing of masks, and banning nonessential medical services, all in an effort to “flatten the curve.” Although the vast majority of the public supported these measures, at least initially, numerous litigants went to court seeking to enjoin SDOs. They did so against the backdrop of an increasingly polarized reaction to the pandemic, with President Trump, who had promoted social distancing in March, tweeting in April for the liberation of states as armed protesters shut down the Michigan legislature. Meanwhile, false and misleading information about COVID-19 and potential policy responses spread wildly across social media, some of it amplified by the President himself. Protests, polarization, and misinformation: these formed the environment in which state and federal courts confronted the initial wave of constitutional challenges to COVID-19 SDOs. In deciding those claims, and in the absence of significant contemporary precedent, most courts looked to the Supreme Court’s 1905 decision in Jacobson v. Massachusetts. A complex and multifaceted decision, Jacobson has been cited frequently in the 115 years since it was decided. But never before had it been used so prominently to decide the constitutionality of broad state SDOs in the midst of a pandemic. And never before had it been relied upon to such an extent in such a lethal, partisan, and heated moment. How did the courts respond to the initial wave of litigation? This Article offers some preliminary observations by examining court opinions published in Westlaw reviewing abortion, free speech, and free exercise claims that cited to Jacobson between March 21 and May 29, 2020, when the Supreme Court handed down its first COVID-19 opinions. This examination shows that although lower courts offered different interpretations of Jacobson, all accepted the importance of the state’s interest in protecting the public’s health. Moreover, no court questioned the seriousness of the pandemic; nor did any adopt the misleading information about the pandemic that was widely available on social media. Nevertheless, at least until May 29, when Chief Justice Roberts and Justice Kavanaugh issued concurring and dissenting opinions respectively accompanying the Supreme Court’s refusal to block the application of California’s social distancing order to religious services, the lower courts diverged over how to reconcile the deference that Jacobson accords to public health authorities with the protection of fundamental constitutional rights. Further, while factual distinctions regarding state-specific SDOs likely help explain some of the different outcomes, the shifting nature of the claims and the evolving politics around SDOs may also have played a role, raising critical questions as to how courts may respond should states impose new SDOs either in response to a “second wave” of COVID-19 or a future pandemic.
In response to the very real possibility that there will be insufficient resources to properly respond to the Covid-19 pandemic, states have been developing crisis standard of care plans, which may authorize the prioritization of patients for scarce resources based on changing circumstances and increased demands. Due to the dearth of necessary resources and trained professionals during a public health emergency, the standard of care that clinicians may be able to provide during the Covid-19 pandemic may, by necessity, depart significantly from standard non-emergency medical practice. Adhering to crisis standards of care may expose health care providers and entities to considerable costs and burdens, including the risk of both civil and criminal liability. Liability shields may be necessary when, due to the circumstances of the emergency, a state faces scarce resources and the state activates its crisis standards of care. This article comprehensively evaluates state laws, passed both in advance of the current public health crisis and in response to Covid-19 pandemic. It concludes that liability protections are most appropriate in instances where health care providers and, in limited circumstances, health care institutions, follow, in good faith, rules, guidance, or protocols that are modified from the “norm” and necessitated by emergency circumstances or intended to respond to the circumstances of the public health crisis. Blanket immunity provisions are inappropriate. Rather, we should determine liability protections based on whether: (1) the federal government, state government, local government, professional society, or medical institution has provided rules, guidance, or crisis standards of care, elucidating the modifications to the existing standard of care required during the state of emergency; and (2) there is an identified need to extend legal protections to providers or institutions, based on perceived reluctance to follow crisis standards of care intended to save lives, due to fear of liability. While this proposal is narrower than what many states, some policymakers, and politicians have proposed, it is more likely to ensure accountability and protect vulnerable patients.
Massive amounts of data, increased computing power and advances in technology have created the recent AI Spring. While some feel the continuation of this period of AI innovation is inevitable, its future is in jeopardy due to the recent trade war between the U.S. and China. Although the U.S. spearheaded the globalization movement after WWII, it has shifted to a policy of protectionism and rejectionism. China, conversely, has begun to fill the gap that the U.S. has left in its wake with its withdrawal from multilateral trade agreements, rejection of the World Trade Organization, and retreat from free trade principles. The future of AI, especially the Internet of Things (IoT), rests on the availability of a massive communication infrastructure that 5G can provide. Although the U.S. was the undisputed leader in 4G technology, China is the primary supplier of 5G networking equipment and, through its Belts and Roads Initiative, seeks to spread its 5G technology throughout the world. Additionally, China has created a long-term strategic plan for AI providing billions for tech start-ups (locally and abroad), promoting collaboration and research, investing in educational programs, and designing technical standards as well as supporting the needed 5G infrastructure. Conversely, the U.S. government relies on private industry to move this field forward. The U.S.-instigated trade war with China appears to be an attempt to thwart China’s progress. This trade war not only threatens the global economy and endangers democracy, it will likely cause an innovation winter – hindering future developments in AI. There is a very real danger that should the U.S. and China continue with this decoupling, the result could be a bifurcated internet, the development of technology on two divergent tracks, and a 5G infrastructure with non-interchangeable components requiring the rest of the world to choose a side.
Law and economics scholars agree that business regulations have a disproportionately negative impact on entrepreneurship and innovation. It would be a significant problem indeed if the very nature of regulation inhibits this kind of growth and creativity. This view of the problem suggests that the only way to increase innovation would be to decrease regulation. Yet this view is too general. When examined more closely, all regulations are not created equal. Regulations can be formulated as rules or standards, and they can be simple or complex. Moreover, some rules are easily understood by computers and are thus suitable for automated processes. Different types of rules have different impacts on entrepreneurship and innovation. This paper is based on interviews with over one hundred startups regarding the impact of regulation on innovation. It identifies six cases of startups that invented ways to make certain kinds of regulations relatively affordable for many small businesses to comply with. These new uses of technology are examples of “regulatory democratization” because they open access to regulated industries for small business. Regulatory democratization increases competition and levels the playing field between small and large firms in highly regulated industries. Regulatory democratization sheds new light on other proposals that are intended to spur entrepreneurial innovation. Regulatory sandboxes—where regulators give select companies the freedom to operate beyond regulatory boundaries—may counterintuitively inhibit innovation by preferencing large firms over small ones. Tax credits for entrepreneurs, on the other hand, can be designed to drive innovation. The key takeaway is that regulations can be smarter and more compatible with entrepreneurial innovation.
Today, thousands of children are born each year using assisted reproduction technology (ART), including assisted insemination, in vitro fertilization, and gestational carriers, and the numbers continue to rise. Many of these children are not genetically related to one or both of their parents because donated gametes are used; in cases where a gestational carrier gives birth, the intended parents may adopt the child even if they are the genetic parents. Some of these ART children may find themselves clashing head on with old dynasty trusts that presume that adoptees are excluded from class terms such as “issue,” “descendants” or “grandchildren,” and require all beneficiaries to be related by blood to the settlor. Two recent cases, McGehee v. Edwards, 268 Va. 15 (2004) and Matter of Doe, 7 Misc. 3d 352 (N.Y. 2005) have raised this issue, but we are likely to see many more in the next few years. Will courts treat ART children just as they have treated adopted children, parsing the difference between “issue,” “lineal descendants,” “heirs of the body,” “heirs,” and other class terms; debating whether the writer’s intent or public policy should prevail; and raising questions about whether a change in the common law presumption may or should be applied retroactively? Or should an entirely different approach be used, one that allows us to avoid extensive litigation, the invasion of privacy that extensive DNA testing would produce, and the inevitable stigmatization of children of same-sex couples who can’t be biologically related to both people raising them? This article examines the language of 74 old wills and trusts, ones that are already up and running and cannot be amended, to see if there is a better way to deal with ART children. Can the trustee use doctrines such as decanting to solve this dilemma? Can courts be persuaded to broaden their approach so that trustees or executors can accurately predict what these terms mean, and not flood the courts with requests for instructions? I will propose solutions that might just do that.
A trial court’s distinction between using the language “victim” and “complaining witness” may seem trivial, but it plays a significant role in the criminal justice system. Defense attorneys argue that using the term victim presupposes what the trial is meant to determine and therefore denies defendants’ constitutionally guaranteed presumption of innocence. Some defense attorneys have gone so far as to argue that “calling the deceased a victim is just as wrong as calling the defendant a criminal.” Conversely, prosecutors point out that the term victim is frequently used in statutes and that it does not necessarily presuppose criminal activity by the defendant. Furthermore, the alternative term, complaining witness, may lead jurors to associate the accuser’s testimony with trivial, annoying complaints by children or coworkers. These seemingly slight intimations at trial can bias a jury toward a particular conclusion, undermining its autonomy. To further complicate the issue, the term victim is ambiguous in the U.S. legal system. It is defined differently between statutes, and sometimes it is not defined at all. Difficulties arise when determining who qualifies as a victim based on issues of adequacy of injury, causation, imaginary victims, and culpable or consenting victims. This Article reports the findings of a study on the effects of using victim or complaining witness on juror decision-making and concludes with a suggested best practice for addressing the legitimate complaints of both sides of the debate.
