Jan 5, 2022 Margaret KwokaAdministrative Law
Brian D. Feinstein,
Identity-Conscious Administrative Law: Lessons from Financial Regulators, __
George Washington L. Rev. __ (forthcoming), available at
SSRN.
Literature exploring mechanisms for democratic accountability of the administrative state is so rich that it sometimes feels like there is no novel take left. But Professor Brian Feinstein, in his forthcoming article Identity-Conscious Administrative Law, shines a spotlight on an unexamined angle: how and when agency procedures use identity requirements to ensure otherwise-marginalized perspectives are heard.
The sets of administrative structures Professor Feinstein considers may seem specific and narrow, but as he compellingly demonstrates, the possible implications of expanding these approaches are vast and important. Indeed, what makes this article so convincing is its identification of extant and accepted tools to address deep and structural problems of inequality and injustice in administrative decisionmaking. If taken to a larger scale, these tools could be a central part of reclaiming democratic accountability over the administrative state. Continue reading "Elevating Marginalized Voices in Agency Decisionmaking"
Jan 4, 2022 Anne Marie LofasoWork Law
In her article, Temporary Termination: A Layoff Law Blueprint for the COVID Era, Professor Arnow-Richman argues “that the exigencies of the pandemic bring to light a long-neglected flaw in the pre-existing regulatory framework: there is no reliable just-in-time source of continued pay, nor any form of separation rights, for laid-off workers.” (P. 20.) The article is divided into three main sections. First, it describes the dearth of protections for laid-off workers. Second, it explains the legal significance this gap holds in protecting laid-off workers. Third, it “sketches a new law of layoffs focused on income continuity and job attachment.” (P. 4.)
In Part I (Pp. 5–12), The Economic Termination Gap, Professor Arnow-Richman explains that there are few federal (or state) protections for workers whose employment is terminated, permanently or temporarily, for economic reasons. The one federal right that Congress has created is a limited right to advance notice of job termination under the Worker Adjustment and Retraining Notification (WARN) Act, 29 U.S.C. §§ 2101-2109. The WARN Act requires certain large employers to provide 60-days’ advance notice of job loss resulting from a plant closing or mass layoff, as those terms are statutorily defined. Continue reading "Changing the Legal Baseline for Effecting Mass Economic Dismissals"
Jan 3, 2022 Anthony SebokTorts
David A. Dana,
Public Nuisance Law: When Politics Fail (May 26, 2021), available at
SSRN.
Public nuisance is in the news again. Three important opioid cases have been recently decided. In November plaintiffs lost a bench trial in California state court, and eight days later, the Oklahoma Supreme Court reversed a $465 million trial verdict, holding that, as a matter of law, public nuisance does not extend to the manufacturing or marketing of prescription drugs. About a week later, a jury in a bellwether, the Ohio federal MDL, held that pharmacies caused a public nuisance by failing to respond to curb medically unnecessary prescriptions.
David Dana’s article offers a bold prescription to courts about how to approach public nuisance, including the opioid litigation. Dana’s argument should, in theory, make sense of November’s mixed bag of decisions. His argument operates at two levels, first about the relationship between public nuisance and democracy, and second about the specific wrongful conduct which the tort of public nuisance should address. Continue reading "Law’s Duct Tape? Using Public Nuisance to Fix the Holes in Administrative Law"
