Institutional and political forces create strong inertial pressures that make the updating of legislation a difficult task. As a result, laws and regulations often stagnate, leading to the continued existence of obsolete rules and policies that serve long-forgotten purposes. Recognizing the inertial power of past legislation, legislatures over the last few decades have increasingly relied on a perceived solution—temporary legislation. In theory, temporary legislation avoids inertia because it requires legislators to make a deliberate choice to extend it. This Article argues that temporary legislation is a double-edged sword. While some temporary laws ultimately expire, many perpetuate through cycles of extension and reauthorization. Close examination reveals that temporary legislation often results in its own inertial force, leading to the unintended permanence of what is originally believed to be only a provisional measure. Using a case study from a large public subsidy adopted as a localized fix to a temporary problem, the Article demonstrates how the subsidy has inadvertently grown in scope and in size, creating its own inertial force that made its repeal exceedingly difficult. Path-dependent dynamics of temporary legislation affect not only present-day policies, but also the ability of legislatures to resist status quo bias and bring about legal change. The Article concludes with normative insights on ways to utilize flexible rulemaking whilst circumventing legislative inaction. Careful design of expiring provisions that is aware of the inertial power of temporary legislation and can effectively ensure that laws are kept or discarded given their merits, not by force of history.
In _McDonnell Douglas Corp. v. Green_, the U.S. Supreme Court developed a framework to assist courts in assessing individual disparate treatment claims based on circumstantial evidence. Under that test, plaintiffs alleging discrimination under Title VII must first show a prima facie case of discrimination. Since _McDonnell Douglas_, courts have modified the test by requiring plaintiffs to demonstrate that they were treated less favorably than a similarly situated comparator employee who is outside the plaintiff’s protected class. Courts disagree, however, on what it means for employees to be similarly situated. Some courts strictly interpret the similarly situated requirement; others caution against an overly mechanical approach and employ a flexible standard instead. As a result, a plaintiff could successfully plead a prima facie case of discrimination in one federal circuit but fail in another. To resolve this disparity, this Note proposes that the U.S. Supreme Court adopt the Seventh Circuit’s standard for comparator evidence due to its consistency with the Court’s precedent, its cohesion with the purposes underlying Title VII, and its practical benefits for plaintiffs alleging a prima facie case of employment discrimination.
The Confrontation Clause of the Sixth Amendment grants “the accused” in “all criminal prosecutions” a right “to be confronted with the witnesses against him.” A particular problem occurs when there is a gap in time between the testimony that is offered and the cross-examination of it, as where—pursuant to a hearsay exception or exemption— evidence of a current witness’s prior statement is offered and, for some intervening reason, her current memory is impaired. Does this fatally affect the opportunity to “confront” the witness? The U.S. Supreme Court has, to date, left unclear the extent to which a memory-impaired witness can afford a criminal defendant her right to confront. Would, for instance, it be of any value to permit a defendant the opportunity to cross- examine a witness claiming no recollection of having seen the crime or having identified the defendant as the perpetrator? Should the right to confront simply imply the ability to look one’s accuser in the eye at trial, or should it necessitate some degree of opportunity for substantive cross-examination? Two petitions for certiorari that the U.S. Supreme Court denied in December 2019—White v. Louisiana and Tapia v. New York— could have permitted the Court to clarify confrontation rights in memory loss cases. This Article identifies and discusses eight key issues arising under the Confrontation Clause in connection with memory impairment in witnesses. Although the Court chose not to put these issues to rest in the context of White or Tapia, we anticipate federal and state courts will be called upon to answer these issues in the coming years, and we suspect the Court will eventually need to answer them.
The Georgia Animal Protection Act—a set of animal protection laws that has remained unchanged for nearly two decades—was passed to promote animal welfare across the state. Although the Act was progressive at its inception, its failure to curb the atrocious conditions created by puppy mills has become increasingly apparent, resulting in serious consequences for both consumers and dogs. Georgia must amend its animal protection laws to shift the costs of puppy mills to where they belong: on pet sellers. Among other innovative solutions to this problem, many states have enacted “puppy lemon laws” that generally provide pet purchasers with the option to return, exchange, or be reimbursed for reasonable veterinary expenses for their “sick” puppy. But traditional puppy lemon laws may be put to better use as cost internalization tools rather than as mere consumer remedies. This Note advocates for a puppy lemon law that provides the consumer with just one remedy: reimbursement for reasonable veterinary costs after purchasing a sick puppy from a pet seller. Traditional puppy lemon laws have many weaknesses, and the true utility of such laws may be in deterring pet sellers from supporting puppy mills in the first place. By enacting a progressive puppy lemon law that considers all of the interested parties, alongside the other recommendations in this Note, Georgia can secure its position as a state with model animal welfare laws and—most importantly—can save lives.
This Essay describes the “voting rights paradox”—the fact that despite America’s professed commitment to universal enfranchisement, voting rights legislation throughout U.S. history has arisen in some states to serve antidemocratic, exclusionary ends. This Essay argues that this contradiction comes into focus when the right to vote is understood as having as an ideological driving force based on worthiness for admission to the franchise. This ideology of worthiness persists because the right to vote is dependent on political decisions left to the political branches and the majority’s willingness to allow propaganda to influence the scope of the franchise. Ultimately, this Essay argues that the voting rights paradox is effectively the “invisible hand” influencing the American law of democracy. The only way out of the paradox is to reorient voting rights towards a communitarian conception that fosters an authentic understanding of a universalist right to vote. This must be expressed by (and coupled with) fundamental, structural transformations in the mechanisms for allowing citizens to exercise their voting rights.
When a district court denies qualified immunity at summary judgment, defendants have a limited right to immediately appeal that decision. In Johnson v. Jones, the Supreme Court held that the courts of appeals have jurisdiction to address only whether the facts assumed by the district court amount to a clearly established violation of federal law. They lack jurisdiction to look behind the facts that the district assumed were true to see whether the evidence supports those facts. Despite this seemingly clear rule, defendants regularly flout Johnson's jurisdictional limits, taking improper appeals, creating extra work for appellate courts, and imposing wholly unnecessary costs and delays on civil rights plaintiffs. Plaintiffs and even courts also are sometimes confused by the rule in Johnson. And the Supreme Court's decision in Scott v. Harris — which appeared to violate Johnson's limits without mentioning Johnson or even appellate jurisdiction — has made the jurisdictional rules governing qualified-immunity appeals even less certain.In this article, I address the law governing jurisdiction in qualified-immunity appeals from summary judgment. I show that Johnson can be read only to mean that the courts of appeals generally lack jurisdiction to review whether the summary-judgment record supports the district court's assumed facts. I explain how to reconcile the analysis in Scott with the rule in Johnson: Scott created an exception to the general limit on reviewing the district court's assumed facts when something in the record blatantly contradicts those facts. I argue—based on my analysis of 12 years of decisions invoking this exception—that Scott's blatant-contradiction exception is neither pragmatic nor needed. And I offer reforms, via Supreme Court decision or rulemaking, that would both clarify and improve the law governing qualified-immunity appeals.
Modern medicine faces many significant challenges. This Article is about two of them. The first is that approved drugs have many potential therapeutic uses that are never identified, investigated, or developed. The second is the routine practice of physicians prescribing approved drugs for unapproved uses—so-called “off-label” uses. These problems seem very different. Failure to invest in potential new uses is an innovation problem: firms lack incentives to research and develop new uses of old drugs. The problem of off-label uses, on the other hand, is one of safety and efficacy: off-label uses are risky because they aren’t supported by the same level of evidence as approved uses. While descriptively accurate, this is not the only accurate description. Each of these problems is also one of information—a lack of information about the safety and efficacy of prescribing approved drugs for unapproved uses. Because all new uses of approved drugs are off-label uses, gathering safety and efficacy information about off-label uses, in effect, produces safety and efficacy information about many new uses. Not only that, but some off-label uses may be new: physicians may innovate by prescribing drugs off-label. Reframing these two seemingly disparate problems in terms of a common information deficit enables a single, information-based solution. This solution—which draws on the existing suite of innovation policy levers—incentivizes providers, rather than pharmaceutical companies, to generate the post-market information needed to address both problems.
Consumer contracts are a pervasive legal tool that governs much of our daily activities. In spite of – or perhaps due to – their ubiquity, consumer contracts are routinely modified by businesses after being accepted by consumers. Common modifications include, for example, a change fees, alteration of a dispute resolution clause, or a revision to the firm’s privacy policy. In fact, unilateral modifications can address virtually every aspect of a contract. While the literature widely discusses the problem of ex ante consent to consumer contracts, it does not properly recognize the problem of ex post consent to unilateral modification. Yet, the practice of unilateral change consumer form contracts comes with significant detriments and social costs. In spite of these costs, there are no systematic empirical studies exploring this phenomenon. The Article aims to fill this gap by empirically examining the frequency, the mechanics and the degree of transparency of unilateral change mechanisms consumer contracts. This Article examines 500 sign-in-wrap contracts of the most popular websites the U.S. that use such agreements. We find that the vast majority of consumer contracts our sample are in contracts. That is, they allow firms a unilateral and broad discretion to covertly change consumers' rights and obligations after being accepted by consumers. The findings of this study raise concerns as to whether sneak contracts are aligned with some of the prominent core values and principles of contract law, such as consent, promise, reliance, consideration, freedom, choice, empowerment and community. The study thus calls for the introduction of an underdeveloped principle the law that governs the modification of consumer contracts: the principle of transparency. It then offers a set of concrete recommendations, which will allow policymakers and courts to exhibit a more developed, sound and effective approach to the problem of sneak contracts.
The U.S. Supreme Court’s decision in _Garcetti v. Ceballos_ put further restraints on public employee speech by exempting from First Amendment protection speech made pursuant to the “official duties” of public employees. This limitation, if applied to the speech of college professors, would constrain their academic freedom of instruction and scholarship by permitting overbearing institutional oversight. This constraint would be detrimental not only to the employed professors, but also to their students and the post-secondary educational system as a whole. Courts should not apply _Garcetti_ to academic freedom in the post-secondary education context, and they should avoid further limitations on professorial speech. This Note argues that Garcetti should not be applied to higher education faculty by reconsidering the purpose of the university and the role that students and colleagues play in the expressive activities of professors. While many commentators have noted Garcetti’s potential detriment to the speaker, very few have considered the audience’s participation in both instruction and research. This Note accounts for the rights of those receiving instruction from, or engaging in scholarship with, the professor to argue that restraints on professorial speech harm both the speaker and the audience.
Homeownership provides owners with certain property rights and a sense of security. One of the most important property rights is the Takings Clause of the U.S. Constitution, which prohibits the government from taking private property without just compensation. The Clause has been incorporated against the states and is interpreted as prohibiting any taking that does not serve a public use. Despite these constitutional protections, numerous condominium owners face the threat of private investors taking their units for no public use, without just compensation, and without the owners’ consent. Many state condominium laws allow private investors who obtain a specified percentage of a condominium’s units to force the minority unit owners to sell their units. Although the U.S. Supreme Court has written many opinions interpreting the Takings Clause, the Court has not addressed whether states may permit the forcible transfer of condominiums—or other forms of common-interest homeownership—without the unanimous consent of the owners. Although takings for economic development are permitted, no scholarship has considered whether the Court’s reasoning behind its rejection of the “bitter with the sweet” doctrine can be applied to the Court’s Takings Clause analysis to prohibit states from statutorily conditioning condominium ownership upon waiver of constitutional protections. This Note suggests that the Georgia Condominium Act—and other state condominium termination statutes—may unconstitutionally permit investors to effectuate private takings by forcing dissenting minority owners to sell their fee simple interests in their units.
Recently the Civil Rules Committee of the Judicial Conference of the United States began considering the need for specific rules related to multidistrict litigation (MDL) proceedings. The possibility of creating rules specifically for MDL has its origins in recent proposed legislation prompted by groups typically tied to the defense bar. One area under consideration by the Civil Rules Committee is the use of fact sheets in MDL proceedings. These party-negotiated questionnaires, directed at parties to the case (both plaintiff and defendant), provide judges and attorneys with information about the scope of the proceeding. Understanding whether these case management tools are currently being used and how they work with other tools such as bellwether trials in MDL proceedings will help inform a discussion of the need for specific MDL rules. Despite their importance, there is very little published empirical work looking at fact sheets in MDL proceedings. This is the first such study of the use of fact sheets.Using a sample of 116 mass tort proceedings (typically involving products liability) centralized through MDL between 2008 and 2018, we examine when fact sheets were ordered, what were the procedures for complying with the case management order, what information was collected, and what effect they have on the termination of the proceedings. The proceeding ranged between 3 and 40,533 actions and were open a minimum of 118 days and a maximum of 3,811 days. Actions terminated within the proceeding at least 98% of the time, but little information is available on how the actions terminated. Proceedings were centralized in 40 districts. We find that fact sheets are ordered more than half the time, and were most likely to be used in the largest proceedings. The information in fact sheets is used in several ways within the proceeding, including identifying cases for bellwether trials and winnowing cases, and the use of fact sheet processes leads to faster termination of the proceeding, all else being equal. Our sample of proceedings suggests judges use fact sheets to organize products liability proceedings when judges perceive they are merited, after considering the size of the proceeding or the nature of the litigation. The frequency with which judges already employ fact sheets and the variation in the use calls into question both the need for a rule and how to write one without tying the hands of transferee judges. Many issues regarding how fact sheets are used remain to be studied more in-depth. We encourage future studies regarding how fact sheets are used across MDL proceedings.
Delaware dominates the market for business formations. Two main theoretical explanations have been offered to justify Delaware’s continued success. One focuses on the state’s credible commitment to producing responsive organizational law in the future. The other looks to the network effects that continue to encourage new formations once Delaware already dominates. Yet, other than continued observation of Delaware’s dominance, little empirical support exists for either theory. This Article empirically tests entrepreneurs’, investors’, and lawyers’ appetite for Delaware’s credible commitment. I use the recent Delaware Supreme Court decision of Gatz Properties v. Auriga Capital Corp., which was a negative shock to Delaware’s credible commitment to responsive LLC organizational law, to analyze the demand for Delaware’s credible commitment to responsive organizational law. I find two major shifts following Gatz: (1) a significant and persistent decrease in the value of publicly traded Delaware LLCs and (2) a lower rate of private LLC formation in Delaware relative to other states. Notably, these decreases do not reverse despite prompt reparative action from the Delaware legislature. In addition to providing empirical support for the credible commitment theory, these results offer important policy implications for the present condition of organizational law and the future of state competition for business formations.
Video-streaming services like Netflix, YouTube, and Disney+ dominate the current media landscape. This Note explains why current laws likely cannot effectively prevent these streaming services from collecting and sharing users’ private information. The Video Privacy Protection Act (the VPPA) contains language that has baffled courts when applying its text to streaming services, resulting in multiple circuit splits. The Children’s Online Privacy Protection Act (COPPA) has a clearer application to streaming services, yet its enforcement has resulted in small settlements with companies that have been charged with collecting children’s private information. Both the VPPA and COPPA need to be updated to address modern privacy concerns. This Note analyzes the historic 2019 settlement between YouTube and the Federal Trade Commission over YouTube’s alleged COPPA violations. When placed in context, this settlement, while historic, remains paltry due to YouTube’s revenue and the extent of the alleged wrongdoing. This illustrates the problems with COPPA enforcement generally. While the VPPA could potentially restrict streaming services’ behavior, case law interpreting that legislation severely limits its applicability. This Note concludes by suggesting changes to be made to the VPPA for effective use against streaming services and how COPPA settlement guidelines could be updated to result in more reasonable settlements for any future issues with streaming services.
Trade-offs between a sacred value—like human life—against a secular one—like money—are considered taboo. People are supposed to be offended by such trade-offs and to punish those who contemplate them. Yet the last decades in the United States have witnessed the rise of the cost-benefit state. Most major rules promulgated today undergo a regulatory impact analysis, and agencies monetize risks as grave as those to human life and values as abstract as human dignity. Prominent academics and lawmakers advocate the weighing of costs and benefits as an element of rational regulation. The cost-benefit revolution is a technocratic coup, however, if citizens view regulatory trade-offs as a symbolic denial of the values they hold dear. This Article details three experiments that evaluate responses to a cost-benefit justification for regulatory policy. Across a range of conditions, the experiments revealed no evidence of diffuse hostility toward a consequentialist approach to saving lives. The final experiment found, however, that informing participants that they were expected to vindicate the sanctity of life resulted in them doing so. This result demonstrates the malleability of norms and expectations surrounding regulatory trade-offs. Taken together, the experiments suggest that people normally do not perceive regulatory trade-offs as symbolic affronts that call for an expressive defense of the value of life. While these results do not conclusively establish the normative desirability of the cost-benefit paradigm, they do suggest the absence of any broad opposition to consequentialism in public life. These findings have implications for the democratic legitimacy of the administrative state and its institutional design. They also bear on the relationship between tort and regulation as mechanisms for risk control. Insofar as tort judgments are expressive and regulatory decisions are not, regulation that preempts the common law of torts might help temper the tangible costs of symbolism.
Landlord retaliation laws protect tenants from landlords’ harmful retaliatory actions in response to tenants’ exercise of their legal rights. In May 2019, Georgia joined the majority of other states by enacting H.B. 346, an act establishing the requirements for a prima-facie case of landlord retaliation. Georgia’s eviction and poverty rates are higher than the national average, and this law stands to address underlying issues that drive those problems. Other states’ landlord retaliation laws offer best practices in addressing landlord retaliation. These include implementing rent abatement protections and expanding the scope of protected actions. Improving low-income individuals’ access to counsel and to information are other key reforms. This Note argues that the Georgia legislature should amend H.B. 346 to incorporate these provisions and, in the process, strengthen tenants’ protections from retaliatory landlords and evictions. Although H.B. 346 marks a significant step forward, these additional protections will ensure that Georgia tenants enjoy a robust legal framework for their rights.
The Equal Rights Amendment (ERA) was presumed dead in the 1980s after a long battle for ratification failed, but it has recently returned to public discourse with the latest wave of feminist influence in the United States. The ERA declares that equal rights under the law cannot be denied on account of sex. In the 2020 U.S. Supreme Court decision, Bostock v. Clayton County, the Court interpreted similar language from Title VII of the Civil Rights Act of 1964, which also prohibits sex discrimination. In that case, the Court interpreted the statutory prohibition on sex discrimination to include discrimination against sexual minorities for the first time. If the ERA is adopted in its present form, it should be interpreted in accordance with the Court’s decision in Bostock to protect sexual minorities as well as women. While many scholars have answered constitutional questions regarding the ERA and articulated the ongoing need for its incorporation into the U.S. Constitution, none has had the opportunity to analyze its language in light of the landmark Bostock opinion. This Note provides that evaluation, explaining why Bostock and other relevant jurisprudence support an all-encompassing interpretation of the ERA, should it be officially adopted.
Qualified immunity protects officials from damages for constitutional violations, unless they have violated “clearly established” rights. Local governments enjoy no immunity, but may not be sued on a vicarious liability theory for constitutional violations committed by their employees. Critics of the current regime would overturn of these rules, in order to vindicate constitutional rights and deter violations. This article argues that the costs of these reforms would outweigh the benefits.
Under current National Labor Relations Board interpretations of the National Labor Relations Act, employers may only be punished for misclassifying their employees as independent contractors if a separate violation of the NLRA is present. As the U.S. economy increasingly focuses on gig work, millions of workers are affected by misclassification, which results in lower pay and fewer employment protections. Misclassification also strips the government of billions of dollars in tax revenue. The NLRB considered the issue of making the misclassification of employees a standalone violation of Section 8(a)(1) of the NLRA in the case Velox Express, Inc., yet it declined to do so. This decision is not in accord with the realities of the modern gig economy and the changing nature of the workplace. This Note argues that the NLRB should find that standalone violations of Section 8(a)(1) of the NLRA exist when employers misclassify workers as independent contractors rather than as employees. Misclassification benefits employers while substantially harming employees. Employers who misclassify their workers should face the repercussions of an NLRA violation each time they misclassify a worker. This standalone violation would further Congress’s stated purposes for the NLRA and would provide gig workers with protections associated with the employment relationship.
Georgia’s statutory regulation of distracted driving, the Hands-Free Georgia Act, went into effect in July 2018. The Act is rife with ambiguous and uncertain language that fails to apprise drivers of the legal and practical consequences of their actions. But in the three years since the Act’s passage, neither the legislature nor the courts have addressed these issues. With its many exceptions, the Act neither protects drivers’ constitutional rights nor adequately curtails dangerous driving. Vagueness in the Act’s numerous exceptions, Fourth Amendment concerns, and the potential for pretextual stops and racial profiling present potential legal issues on which litigants may base challenges to the Act in the future. To ensure the safety of Georgia’s roads, the Act must carefully balance the dangers of distracted driving with the rights of drivers. This Note presents possible solutions for the legislature or courts to implement to improve the Act, clarify its future interpretation, and achieve this precise balance.
To determine the proper procedure by which landowners may seek judicial review of adverse decisions on rezoning applications, Georgia courts must consider the nature of rezoning decisions. For decades, the courts have held—with little explanation—that rezoning decisions are legislative acts subject to de novo review. Then, in the 2017 case Diversified Holdings, LLP v. City of Suwanee, the Georgia Supreme Court classified rezoning decisions as adjudicative acts that may only be reviewed by writ of certiorari. Because the court did not explicitly overturn the decades of precedent classifying rezoning decisions as legislative acts, however, the nature of rezoning decisions—and thus the proper procedure for seeking judicial review of those decisions—is uncertain. This Note argues that the Diversified Holdings court properly classified rezoning decisions as adjudicative acts subject to discretionary appeal and explores the implications of the court’s decision.
