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Vol. 100: Winter

Obergefell and the “New” Reproduction

Alternative reproduction has become the new frontier in the continuing culture wars over the family. Commentators with longstanding anxieties over non-traditional kinship have turned their regulatory gaze to it, as have more progressive scholars who support non-traditional family formation but nevertheless favor proposals to regulate the “new kinship” and the “new reproduction.” Excavating Obergefell v. Hodges’s less obvious reproductive dimension, this Essay argues that the Court’s landmark marriage equality decision renders these regulatory proposals of alternative procreation constitutionally vulnerable. It further maintains that Obergefell could transform even existing laws on procreation by eroding a distinction on which so many of them rest: the distinction between sexual and alternative life creation. Thus understood, Obergefell is a case that unsettles not just the traditional underpinnings of marriage, but also the very edifice supporting the legal regulation of intimate and family life. Full essay here.


Paying High for Low Performance

This Essay argues that regulatory reforms in the area of executive compensation introduced by the Dodd-Frank Act of 2010 have not yet achieved their purpose of linking executive pay with company performance. The rule on shareholder say-on-pay appears to have had limited success over the five proxy seasons since its adoption. The rule on pay ratio disclosure, adopted in August 2015, and the rules on pay-versus performance disclosure and the clawback of certain incentive compensation, proposed in April 2015 and July 2015, respectively, are also unlikely to succeed. For the most part, the rules are intuitive and well-intentioned, but a closer look reveals that they are easy to manipulate, counterproductive, and often interact with one another, and with other regulatory goals, in unintended ways. As a result, five years after the passage of Dodd-Frank, the decades-old goal of aligning pay with performance remains elusive. Full essay here.


The Optimal Scope of Physicians’ Duty to Protect Patients’ Privacy

When discussing the optimal scope of the duty to protect patients’ privacy, the literature compares two incommensurable interests: privacy and safety. Policymakers face a difficult task when trying to find an optimal solution, balancing these two, often conflicting, interests. In this article, we confront the trade-off between patient confidentiality and public safety as manifested in the legal duty to warn or report potentially harmful patient behavior. The incommensurability problem seems to plague the analysis of the two interests: what comparable rudiment do privacy and public safety share in the duty to warn or report context? We develop a model which solves this problem by finding the optimal balance between protecting patient’s privacy (as a means to encourage patients to seek treatment, thus reducing risk in society) and warning third parties or the state (again as a means to reduce risk in society). Our model shows that imposing an unqualified duty to report or warn might result in an increase in the dangerousness of the primary behavior society is concerned about, such as piloting, driving or violent acts. Developing a formula not much more complicated than the Hand formula, we show how the chilling effect and the effectiveness of the medical treatment must be factors that courts should consider when imposing a duty on medical professionals to report their patients to the state or enforcing a duty to warn third parties. Full essay here.


The Supreme Court’s Quiet Expansion of Qualified Immunity

This Essay discusses the Supreme Court’s tendency in recent opinions to covertly expand the reach of the qualified immunity defense available to public officials in § 1983 civil rights suits. In particular, the Essay points out that the Court, often in per curiam rulings, has described qualified immunity in increasingly broad terms and has qualified and retreated from its precedents, without offering any explanation or even acknowledging that it is deviating from past practice.

In making this claim, I focus on three specific issues: the manner in which the Court characterizes the standard governing the qualified immunity defense; the question whether lower court opinions can clearly establish constitutional law so as to defeat a claim of qualified immunity; and the relationship between qualified immunity and Fourth Amendment doctrine. In each of these areas, the Essay demonstrates, the Court has inexplicably broadened the protection qualified immunity affords government officials in § 1983 litigation.

The Essay concludes that, while the most troubling aspect of this pattern is the suggestion that only the Supreme Court can create clearly established law, terminology and tone matter as well. The increasingly broad brush the Supreme Court uses in characterizing the qualified immunity defense is not likely to escape the attention of government actors seeking immunity or the lower courts tasked with resolving their claims. Full essay here.