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.
This Article evaluates strategies to challenge employment discrimination based on parental status. Specifically, it examines proposals put forth by some commentators to establish parental status as a protected class. While such a suggestion is attractive, the Article argues that it ultimately offers few practical advantages and remains wedded to a limited conception of equality, requiring only that employment decisions not reflect differences based on parenthood. Consequently, such a strategy would satisfy anti-discrimination legislation so long as both men and women with parental obligations are equally ill-treated. The Article concludes that a shift in perspective from gender to parental status will not foster meaningful change in the situation of working parents without a parallel shift in legal strategies to resolve work-family conflicts. The model must change from one of formal equality to one that requires the workplace to accommodate the parenting obligations of workers.
This Symposium on nation and culture illustrates these LatCrit goals and advances them. The two main works and the commentaries on them are rich explorations and representations of the voices and concerns of LatCrit theory. This Foreword engages all the works by focusing on the concept of voice and silence. Part I locates the works in the axis of silence and power. Part II explores how critical theory and international human rights norms can be used to develop a progressive methodology to analyze and detect the exclusion or silencing of myriad voices. This Part develops a LatCritical Human Rights paradigm that, by internationalizing voice, serves as a useful tool to explore power-based silencing. Finally, in Part III, the authors illustrate how the proposed paradigm can focus the issues of culture and nation in a way that allows us to promote a non-essentialist, anti-subordination, inclusive personhood ideal.
Abortion is an extremely divisive issue in American politics and culture. Prothro begins this Article by analyzing the current legal standards governing reproduction, which draw a sharp distinction between abortion and contraception. Prothro then examines the function of RU 486, demonstrating that it acts both as a contraceptive and as an abortifacient. Because of this dual capacity, RU 486 does not fit neatly into the current legal framework. Prothro concludes this Article by arguing that RU 486 should force the Supreme Court to create a new framework for the "procreative right." Prothro argues that this new framework should treat the procreative right as a continuum, basing legal protections on a close analysis of the rights at stake, rather than on artificial distinctions that do not accurately mirror the physiological process of pregnancy. This new continuum analysis, Prothro contends, will expand and deepen the abortion debate by focusing it on the broader issues underlying the current debate.
This Article argues that the current approaches to asylum claims based on "social group" membership under the U.N. convention Relation to the Status of Refugees are deeply flawed. The Refugee Convention confers asylum on persons persecuted for their membership in a particular social group. Courts have struggled with the boundaries of the social group definition, and there appears to be no coherent way to reconcile all of the court decisions on what groups qualify as social groups under the Refugee Convention. This Article suggests that courts adopt a consistent definition of what constitutes a social group. The definition proposed in this Article focuses on social perception in the home country of the asylum applicant, and would modestly expand the number of individuals who could successfully claim they were persecuted because of membership in a social group. The Article argues this response is particularly appropriate in light of a major trend in immigration law: asylum applicants increasingly seek protection from persecution not directly from the government, but from non-state actors who are able to persecute their victims because of government indifference to the plight of members of a social group. Part I of this Article introduces the general objectives and structure of asylum law, and its embodiment in the Geneva convention. Part H explains the current law concerning the social group category, and suggests that courts have failed to provide a consistent standard for social group membership, instead relying on ad hoc decisions about particular claims. Part I goes on to suggest that one major reason for this incoherence is that courts paid insufficient attention to claims of persecution by non-state actors. Part III addresses the problems the non-state actor poses for asylum law. Part IV addresses the particular issue of asylum claims arising out of domestic abuse. It reviews international cases on the subject and the Board of Immigration Appeals' decision in R-A-. Part IV argues R-A- s defines social groups too narrowly, and that courts should allow some claims of asylum based on domestic abuse.
This Article explores the nonmonetary eligibility requirements that unemployed individuals must meet in order to receive Unemployment Insurance (UI) benefits. These eligibility criteria, which are decided by the states, vary significantly. Because states often have relatively vague statutes regarding their specific nonmonetary eligibility criteria, state rules, regulations, and case law interpret these statutes and better define the criteria. The author discusses the results of a recent survey of UI nonmonetary eligibility criteria which provides information on the status of criteria across the nation than has been available previously. The author concludes that policy reform in this area should be focused on (1) clarifying and distributing these eligibility conditions for the benefit of unemployed individuals and employers, and (2) reviewing and revising eligibility conditions to be more responsive to individuals who have a significant attachment to the labor force but whose work and family situations necessitate their job separations.
In Part I, I note the difficulty in distinguishing between silencing and silence as resistance. This difficulty has often led people in power to misinterpret the silence of people of color. Part II further explores the complications of incorporating the study of silence into resistance scholarship. I illustrate this complexity by discussing the silencing of welfare mothers and the use of language by women of color to challenge dominant medical discourse. Part III considers Professor Montoya's proposal to use silence as a pedagogical tool. Continuing my examination of silence as both liberating and accommodating, I distinguish between silence in the classroom as a method for subverting the dominant style of speech and silence as reinforcement of students' reluctance to express their opinions in class. Finally, using Professor Montoya's story about racist graffiti, Part IV emphasizes that silence may constitute complicity in marginalizing discourse rather than resistance to that discourse. In short, silence provides a fruitful yet complicated arena of study for resistance scholars.
This Note explores how traditional due process functions in the context of school expulsion hearings. Traditional due process is inadequate in the case of "chronically disruptive" students because these students have lost their property right in education long before the law requires a due process hearing. Instead, new avenues of due process that are better adapted to the educational setting must be explored. Lawyers should expect schools to identify students' with behavioral problems before expulsion becomes imminent and assist students in overcoming these problems. This "educational due process" not only helps to protect troubled student's education, but it is also an effective way to address the problem of violence in schools.
In this article, I explore emotional segregation and how it functions in the context of Huckleberry Finn for both personal and academic reasons. Recently, I read Huckleberry Finn because it had been assigned to my daughter's middle school class. I was concerned for her welfare because she is Black and worried how the book would affect her. To understand her reactions, I had to understand the controversy surrounding the book, particularly as a White mother I have reflected quite deeply on the question whether the book is racist. I define "racism" as a belief in the myth of White superiority and Black inferiority, also known as the race precept. 1 I conclude that Huckleberry Finn is racist. Undoubtedly, my conclusion reflects my experience as a White mother of a Black child. Without those experiences, it is possible my whiteness would not have allowed me to understand why and how teaching the book creates emotional segregation.
Complaints about the jury system and calls for its reform are nothing new-they have probably existed as long as the jury system itself. Warren Burger called for the reform of the civil jury in 1971; in 1905 William Howard Taft decried the contemporary tendency "to exalt the jury's power beyond anything which is wise or prudent .... , Judges complain to judges, lawyers complain to lawyers, legal academics write articles about the jury for other legal academics, social scientists report their research on juries to other social scientists, and the jurors themselves go home and express their exasperation to their families. Any of them may try to tell their stories to the public, and journalists fan the flames of discontent.
The demographics of the workplace have changed substantially since the nation's unemployment insurance system was enacted in the 1930s. The number of dual-earner and single-parent families has increased dramatically. Yet, the basic requirements for eligibility for unemployment compensation have not varied much since their initial enactment. In this Article, Professor Malin explores the availability of benefits to individuals who lose their jobs because of conflicts between work and family responsibilities and to unemployed individuals whose family responsibilities restrict the types of jobs that they are able to take. He finds that the states have differed greatly concerning the degree to which they will recognize family responsibilities as a relevant consideration in evaluating employees' behavior said to disqualify them from benefits. Some states reach seemingly anomalous results, such as granting benefits to employees fired for defying employer directives that conflict with their family responsibilities but denying benefits to employees who quit when faced with such directives. Professor Malin analyzes the benefits eligibility requirements and finds that disqualifications for discharges for misconduct, quits without just cause attributable to the employer, unavailability for work, and rejections of suitable employment operationalize the restriction of unemployment benefits to job losers, rather than job leavers. He observes, however, that these terms are laden with value judgments. He traces an emerging public justice value judgment that employers may no longer demand absolute adherence to their directives without regard for employee family responsibilities. He finds this value judgment evident in family leave and related legislation and in arbitration awards concerning discipline under collective bargaining agreements. He provides a framework for analyzing the unemployment compensation claims of individuals whose family responsibilities have caused them to lose their jobs or to restrict the types of jobs for which they are available.
Language and voice have been subjects of great interest to scholars working in the areas of Critical Race Theory and Latina/o Critical Legal Theory. Silence, a counterpart of voice, has not, however, been well theorized. This Article is an invitation to attend to silence and silencing. The first part of the Article argues that one's use of silence is an aspect of communication that, like accents, is related to one's culture and may correlate with one's racial identity. The second part of the Article posits that silence can be a force that disrupts the dominant discourse within the law school classroom, creating learning spaces where deeper dialogue from different points of view can occur. The third part of the Article focuses on the silencing of racial issues within legal discourse and public policy debates, a silencing that is a mechanism for racial control and hegemony. The Article uses the work and imagery of Mikhail Bakhtin, a Russian literary critic, to analyze how silence can have centering and de-centering linguistic force, offering performative and communicative choices that affect racial identities.
The claim of this Article is that the concept of "managed care," like many concepts now prominent in commentary about medical care finance and delivery in the United States, is incoherent and thus a barrier to useful analysis. To demonstrate this conclusion, we first discuss the managerial context in which managed care claims have arisen and outline the diverse trends to which the category is regularly and confusingly applied. We then suggest an alternative approach to characterizing recent changes in medical care and show how this approach alters and deepens our understanding of recent economic and political developments. We conclude by arguing for more neutral categories to make sense of past and projected developments in methods of reimbursement, techniques of management, and organizational structures.
Artificial insemination by donor is becoming an increasingly popular means to achieving parenthood. While the majority of couples use artificial insemination to overcome fertility problems, many recipients use artificial insemination to avoid passing a genetic disease to their children. However, case studies reveal the inherent dangers of artificial insemination, namely the lack of proper screening methods to avoid passing genetic diseases to children born by artificial insemination. State-by-state regulation, federal guidelines, and private adjudication have all proven to be inadequate methods of regulating the artificial insemination industry. Ginsberg proposes federal regulation as the only means of achieving a safe artificial insemination industry. The proposed federal regulation would include better genetic screening, a more efficient national sperm donor system, and limited disclosure to recipients of artificial insemination and their children. These measures would help to ensure that couples using artificial insemination get what they expect-healthy sperm, a safe artificial insemination process, and ultimately, a healthy child.
The benefits provided to states by federal unemployment compensation law are conditioned on meeting several requirements. This Article examines some of these requirements, how they came about, how the United States Department of Labor and the federal courts have interpreted them, and how conflicts between the states and the federal government have been resolved. The Article concludes that certain types of requirements work best within this federal-state system.
The first step in any civil lawsuit, long before a court will contemplate awarding relief, is initiating the court matter: a plaintiff must always start by effectively pleading their case. The court system rests upon the presumption that an attorney will create and file the requisite court documents—including complaints, answers, and motions—on behalf of their client. The reality, however, is that an extraordinarily high number of litigants do not have legal representation and must therefore proceed pro se and submit these documents on their own. Most jurisdictions offer pro se litigants standardized, fillable court forms. These forms are intended to improve access to the court system and are often referenced as proof of a jurisdiction’s efforts to promote access to justice, but they can have the opposite effect. This Article seeks to advance the discussion of the court system’s accessibility by critiquing these ubiquitous standardized forms and questioning the forms’ efficacy in light of other, more intractable hurdles that underserved litigants must overcome to unlock the courthouse doors. While the issues addressed herein affect all civil pro se litigants, they are of particular concern for litigants in family court. Family courts have significantly high rates of pro se litigants, and standardized forms proliferate in family court systems. Moreover, the unique nature of familial disputes—involving emotionally complex bonds and successive requests for court intervention—demand that more attention be paid to the issue of court access. This Article will examine standardized family court forms as a means to illuminate larger issues of access and justice in family court and beyond.
