Why should tort law treat claims for emotional harm as a second-class
citizen? Judicial skepticism about these claims is long entrenched, justified
by an amalgam of perceived problems ranging from proof difficulties for
causation and the need to constrain fraudulent claims, to the ubiquity of the
injury, and a concern about open-ended liability. To address this jumble of
justifications, the law has developed a series of duty limitations to curb the
claims and preclude them from reaching the jury for individualized
analysis. The limited duty approach to emotional harm is maintained by
the latest iteration of the Restatement (Third) of Torts.
This Article argues that many of the justifications for curtailing this tort
have been discredited by scientific developments. In particular, the rapid
advances in neuroscience give greater insight into the changes that occur in
the brain from emotional harm. Limited duty tests should no longer be used
as proxies for validity or justified by the presumed untrustworthiness of the
claim. Instead, validity evidence for emotional harm claims—like evidence
of physical harm—should be entrusted to juries. This approach will
reassert the jury’s role as the traditional factfinder, promote corrective
justice and deterrence values, and lead to greater equity for negligent
infliction of emotional distress (NIED) claimants. The traditional
limitations on tort recovery, including the rules of evidence and causation,
are more than adequate to avoid opening the floodgates to emotional
This Article argues that Citizens United v. FEC expanded the audience
for campaign finance disclosure to include a group that had never before
been held relevant to campaign finance disclosure—corporate
shareholders—and explores the constitutional, policy, and political
consequences of this change. In part IV of Citizens United, the U.S.
Supreme Court departed from more than thirty years of campaign finance
disclosure analysis to treat corporate shareholders as a target audience for
corporate electoral spending disclosure, holding that the governmental
interest advanced by campaign finance disclosure laws includes an interest
in helping corporate shareholders “determine whether their corporation’s
political speech advances the corporation’s interest in making profits.”
Commentators have failed to appreciate the significance of this part of the
opinion, which was joined by eight of the Court’s nine Justices.
The Court’s expansion of the audience for compelled corporate
campaign finance disclosure is unlikely to lead to expanded disclosure; to
the contrary, it is likely to result in less disclosure of corporate political
spending, and particularly in less disclosure that is useful to voters. To
explain why, this Article compares voters’ and shareholders’ informational
interests in corporate campaign finance disclosure. It then explores
potential consequences of the Court’s move to repurpose corporate
campaign finance disclosure to serve the informational needs and interests
of shareholders. After Citizens United, the main governmental interest that
can justify campaign finance disclosure laws is an informational interest,
and several Justices on the current Supreme Court believe that voters lack
legitimate informational interests in some kinds of electoral spending
disclosure. Shareholder informational interests offer an alternative
justification for laws that compel disclosure by corporate electoral
spenders. In the coming years, the Court’s assessment of the relative merits
of voters’ and shareholders’ interests in disclosure information may well
determine the form and content of that disclosure. By clarifying the
differences between a “voter primacy” and a “shareholder primacy”
approach to corporate spending disclosure, this Article lays bare the
consequences of choosing one over the other.
Municipal bankruptcies have been making national news since the
“Great Recession.” Municipalities like Stockton, Vallejo, and Jefferson
County gained notoriety for the record scale of their bankruptcy filings,
only to be surpassed by Detroit shortly thereafter as the largest and most
populous municipal bankruptcy filing. Historically, municipal bankruptcy
occurred infrequently, leaving the nuances of many critical issues,
including insolvency, asset utilization, and good faith, unexplored in case
law. For example, how should a bankruptcy court analyze Detroit’s cityowned
art museum that houses billions of dollars of art when bondholders,
pensioners, and other unsecured creditors have unpaid claims? And how
should a court determine if the city’s debt adjustment plan is fair at the
confirmation phase, when recent proposals have left certain unsecured
creditors receiving pennies on the dollar while others receive full value?
This Note proposes that courts differentiate between one-time event
bankruptcies and structurally imbalanced bankruptcies to evaluate the
creditor notice, insolvency, and good faith provisions. It suggests that
utilization of nonessential assets should be considered in the insolvency and
good faith analyses. Finally, this Note offers heuristics and examples to
provide texture for the analysis of future filings.
In District of Columbia v. Heller, the U.S. Supreme Court clarified a
citizen’s core Second Amendment right to keep a firearm at home; however,
the Court left open the question of how the Second Amendment applies
beyond the home. Since Heller, lower courts have struggled to determine
the constitutionality of concealed carry laws in light of this new
understanding of the Second Amendment.
Many states have enacted laws that restrict a citizen’s ability to obtain a
concealed carry permit, and some of the restrictions are not controversial,
such as the requirements to be above a certain age and have a clean
criminal record. However, concealed carry laws also involve more
contentious requirements, such as New Jersey’s “justifiable need” and New
York’s “good cause” requirements. One concealed carry law reviewed by
lower courts was so restrictive that it amounted to a full ban on carrying
firearms in public. Citizens who have been denied concealed carry permits
challenged the constitutionality of these laws.
This Note summarizes five federal circuits’ decisions regarding such
challenges to statutory restrictions on concealed carry of handguns. Three
of these circuit courts found the laws constitutional, while two held that the
laws were unconstitutional. After this Note considers how each court
reached its decision and why these courts reached differing results, it
ultimately evaluates and critiques the circuit court opinions.
As the number of Americans with criminal histories grows significantly, states and cities across the nation have reacted by adopting ban-the-box laws. Ban-the-box laws received their name because they ban the criminal history box on initial hiring documents. The goal of the ban-the-box movement is to promote job opportunities for persons with criminal records by limiting when an employer can conduct a background check during the hiring process and encouraging employers to take a holistic approach when assessing an applicant's fit for a position.
There is no federal ban-the-box law, but states have taken varying approaches to adopting ban-the-box statutes. States have diverged on whether an employer can conduct a background check, the type of information an employer may consider, and enforcement techniques. The various state approaches, however, can potentially lead to compliance issues for employers that operate their businesses in multiple states.
This Note proposes that the federal government adopt a federal ban-the-box law, which would create a uniform framework for employer compliance. This new federal law should task the U.S. Equal Employment Opportunity Commission with enforcement responsibilities, because the agency has consistently proven capable of enforcing employment discrimination statutes.
The Obama Administration’s controversial exchange of five Taliban
detainees for a captured U.S. soldier in May 2014 reignited a heated debate
over the proper scope of wartime executive authority. From a legal
perspective, the primary issue centers on the constitutional balance of
power between congressional appropriations and the President’s power as
Commander in Chief. A complete analysis incorporates both judicial and
historical precedent to evaluate the conflict within the broader context of
prisoner recovery efforts.
This Note argues that, regardless of the validity of legislative restrictions
on the transfer of Guantánamo detainees, the President possessed sufficient
authority to conduct the prisoner exchange. Commanders in Chief have
retained exclusive control over recovery efforts since the Revolutionary
War, often exchanging nontraditional detainees for regular servicemembers
without any congressional opposition. Furthermore, as this Note
concludes, Congress elsewhere granted the President ample discretion over
notification and defense spending to legally conduct the exchange.
The discourse of merit is central to the “boundary” practices deployed
by the white male elite of the English legal profession to exclude outsiders.
The official discourse of government and regulatory body reports presents
merit as an objectively verifiable and quantifiable property, synonymous
with “excellence,” the salience of which in the recruitment process is
indicative of the modernization of the profession. In this form it is
mobilized to deflect criticism of the slow progress toward diversity.
Critical interrogation of the discourse of merit reveals that it operates
rather differently as a key structuring principle of the profession. The
alternative meaning of merit as “deservingness” provides a teleological
argument for rewarding the embodied cultural practices of white male
elites and underscores individual white men’s sense of their property rights
to high status positions. Using historical sources and data from a series of
qualitative studies, this Article will explore how merit in this sense of
deservingness has been, and continues to be, deployed to resist outsiders’
usurpationary projects. It will further argue that this understanding of
merit also illuminates how such traditional practices as homosocial
bonding through, for instance, sporting or drinking activities and all hours
work establish men’s merit with other men and generally support the
naturalization of white male authority.
by Russell G. Pearce, Eli Wald & Swethaa S. Ballakrishnen
This Article uses the example of BigLaw firms to explore the challenges
that many elite organizations face in providing equal opportunity to their
workers. Despite good intentions and the investment of significant
resources, large law firms have been consistently unable to deliver diverse
partnership structures—especially in more senior positions of power.
Building on implicit and institutional bias scholarship and on successful
approaches described in the organizational behavior literature, we argue
that a significant barrier to systemic diversity at the law firm partnership
level has been, paradoxically, the insistence on difference blindness
standards that seek to evaluate each person on their individual merit.
While powerful in dismantling intentional discrimination, these standards
rely on an assumption that lawyers are, and have the power to act as,
atomistic individuals—a dangerous assumption that has been disproven
consistently by the literature establishing the continuing and powerful
influence of implicit and institutional bias. Accordingly, difference
blindness, which holds all lawyers accountable to seemingly neutral
standards, disproportionately disadvantages diverse populations and
normalizes the dominance of certain actors—here, white men—by creating
the illusion that success or failure depends upon individual rather than
structural constraints. In contrast, we argue that a bias awareness
approach that encourages identity awareness and a relational framework is
a more promising way to promote equality, equity, and inclusion.
When Carmen Guadalupe Vasquez was rushed to [the] hospital after giving birth to a stillborn baby boy, the doctors first treated her life-threatening bleeding and then called the police, who handcuffed her to the bed. In El Salvador, where all abortion is illegal and emergency wards are turned into crime scenes, the confused, weak, and desperately ill 18-yearold maid was placed under investigation for terminating her pregnancy and driven away in a police van.