Building on the author’s recent article Protecting Commoners’ Goods: Pluralist Coexistence Through the Common Good Constitution’s Subsidiarity Municipalism (PCG), this Essay deconstructs the recent New York appellate opinion in Vincent v. Adams. That case reverses a trial court opinion that PCG criticizes as an example of how current law misunderstands the proper relationship between local government and federal and state authorities. This Essay uses the appellate court decision in Vincent v. Adams to reinforce PCG’s thesis of subsidiarity municipalism, to offer another illustration of subsidiarity municipalism’s progressive potential, and to suggest how subsidiarity municipalism can inform the relationship between state and local bodies on budgetary questions.
With the emergence of the metaverse, some problems relating to trader responsibility, which had previously long been addressed, have now resurfaced and come back to life. One of these problems is the question of who should be held accountable for harm inflicted by defective or counterfeit products sold by third-party vendors in metaverse marketplaces. Under the common law, liability for defective or counterfeit products rests with the immediate seller of the product. But, unique aspects of the metaverse may make holding sellers liable unwise, difficult, or even impossible. The law confronted a similar question after online platforms emerged. Currently, common law principles of negligence and product liability still assume liability rests with the seller. But, in some cases, courts have modified the law to impose contributory liability on online platforms in addition, as these platforms are viewed as the cheapest cost avoiders and are in the best position to distribute the damage. As the metaverse, an augmented reality platform, gains momentum, it poses new problems for products liability. Imposing liability on these augmented reality platforms does not necessarily follow the same rationales as imposing liability on e-commerce platforms. This is because, unlike traditional e-commerce platforms, metaverse platforms are operated on the blockchain and are governed by decentralized autonomous organizations (DAOs) enabled by algorithms. Metaverse platforms do not reside on a single server. Instead, content is distributed across an infinite number of servers in a peer-to-peer network. This means metaverses have no single point of authority making it essentially impossible to assign liability to the platforms. Even if it were possible to assign liability to individual DAO members, there would be tenuous economic justification for assigning such liability, as members on the metaverse lack the ability to monitor transactions on the platform. As such, unlike typical online platforms such as Amazon, metaverse members are likely not the cheapest cost avoiders. Applying the law for e-commerce platforms to metaverse platforms risks generating an accountability gap resulting from diffusion of responsibility where many entities are involved in a transaction and none of them act to prevent harm. This also risks leaving victims of defective products or fraudulent transactions without recourse. For these reasons, holding metaverse platforms responsible for the merchandise sold on them may be undesirable as a policy matter. In this Article, we propose a “know your trader” rule for marketplaces. Under this new approach to the long-standing financial trading rule of “know your customer,” traditional online marketplaces and innovative metaverse marketplaces would have to verify the identity of their traders before the traders could enter the system. The marketplace would confidentially maintain traders’ identities to protect the anonymity that draws many to the metaverse in the first place. However, a plaintiff could pierce the veil of anonymity when they present prima facie evidence that their case could survive a motion to dismiss. This idea builds on several statutory proposals and laws in the European Union and the United States that require online marketplaces to identify and verify traders. The Article explains why this rule would be more effective and more efficient than the current application of the rule. Finally, the Article addresses potential free speech objections based on trader anonymity, concluding that the proposed framework is permissible under the First Amendment.
Former felons have a significantly higher unemployment rate than other groups of American workers. This unemployment increases recidivism as well as broader societal problems. Consequently, Congress enacted the Work Opportunity Tax Credit to encourage employers to hire former felons (and other groups of targeted workers) by offsetting their wages. For the credit to increase employment, employers must know whether potential workers would likely qualify for the credit before hiring decisions are made. However, the growing Ban the Box Movement seeks to defer or eliminate conviction history questions in hiring. After examining the credit’s stated purpose, its operating mechanism, and some of the reasons for its failures, this Article proposes three tranches of changes that would create a more effective tax incentive and pair well with the Ban the Box Movement. These changes range from incremental ones to those that would make significant progress in integrating former felons into society and the labor market.
The automotive industry plays a pivotal role in both the American economy and American daily life. This means that the laws that govern the automotive industry and structure power dynamics between central players in the market also play a pivotal role in both the American economy and American daily life. One such area of law has room for improvement: laws governing the manufacturer-dealer relationship in car sales. Although the law currently structures automotive industry power dynamics to the detriment of consumer welfare, it does not have to be this way. This Article proposes legal reforms aimed at improving consumer welfare in the automotive industry. Specifically, because regulation of warranty reimbursement in the manufacturer-dealer relationship skews the automotive industry’s power balance and adversely affects consumers, this Article argues in favor of abandoning mandated warranty reimbursement laws and restoring the primacy of contract law in this domain. The current state of affairs is not how things have always been; the dealer-franchise relationship was initially governed by contract law. However, protectionist state legislation aimed at sheltering small-time franchisees from extractive franchisors emerged throughout the twentieth century and supplanted contract law in governing dealer-manufacturer relationships. This Article critiques the U.S. state laws governing franchised automotive dealers and argues that these protectionist laws represent heavy sectoral economic legislation that unnecessarily intervenes in what should be a contractual relationship between manufacturers and dealers. This Article’s in-depth review of these laws reveals that there is more to this dealer-friendly, protectionist legislation than initially meets the eye. Contrary to many other issues that divide Americans nowadays, both blue (e.g., California) and red (e.g., Florida and Texas) large state economies share a commitment to a high degree of pro-dealer regulatory intervention. Courts are also relatively pro-dealer, as they are generally reluctant to subject dealer-friendly legislation to judicial review under constitutional doctrines such as the Commerce Clause or the Contracts Clause. The unfortunate result of this legal landscape is that franchised dealers derive substantial inefficient and unfair benefits from their positions as exclusive sellers of vehicles and sole providers of warranty services. Against these drawbacks and failures, this Article proposes that abolishing statutorily-mandated warranty reimbursement could yield benefits—not only for consumers, but also for manufacturers and the best-performing dealers. It suggests that history has come full circle: the relative strength of dealers as franchisees of manufacturers justifies once again subjecting those relationships to contract law and to the federal Automobile Dealers’ Day in Court Act (ADDICA). Reflecting on recent market changes and Tesla’s challenge to legacy manufacturers, this Article argues that re-envisioning franchised dealers as modern service centers will spark competition. The broader implications of such a shift could redefine consumer expectations and dealer responsibilities, setting a new standard for consumer protection while also sparking industry innovation in the automotive sector.
This Article examines the debate over multidisciplinary practice in the wake of the collapse of Enron and Arthur Andersen. Part I addresses the history of the scholarly debate about multidisciplinary practice in the United States. It discusses the focus on large multidisciplinary firms, feared threats to independent professional judgment, and the current rule concerning lawyers and multidisciplinary practice. Part II examines the reasons for allowing multidisciplinary practice. The author argues that client demand, lawyer demand, and policy reasons all provide valid reasons for permitting "one-stop" shopping. Part I also discusses existing forms of multidisciplinary practice. The author argues that the methods used by those groups in dealing with ethical and professional considerations indicate that small-scale, or "Main Street" multidisciplinary firms can provide improved service to clients without endangering the legal profession. In Part III, Professor Poser proposes a solution: permitting small-scale multidisciplinary practice, on a state-by-state basis. The author argues that permitting such firms would meet client demand for improved, integrated service, while also allowing state bar associations to determine if larger-scale multidisciplinary practice is feasible, based on the experience of smaller firms.
