Labor law, both as an academic discipline and a subject of public consciousness, is in decline. The Supreme Court’s recent decisions in Epic Systems v. Lewis and Janus v. AFSCME reflect a notable consequence of this decline – what I am calling labor law illiteracy. The majority in Epic Systems seems to misunderstand one of the basic principles of the National Labor Relations Act, and the majority in Janus based its decision, in part, on a simplistic and one-sided view of the justifications for public sector labor law and collective bargaining.
{"title":"Labor Law Illiteracy: Epic Systems Corp. v. Lewis and Janus v. AFSCME","authors":"Michael J. Yelnosky","doi":"10.2139/SSRN.3243854","DOIUrl":"https://doi.org/10.2139/SSRN.3243854","url":null,"abstract":"Labor law, both as an academic discipline and a subject of public consciousness, is in decline. The Supreme Court’s recent decisions in Epic Systems v. Lewis and Janus v. AFSCME reflect a notable consequence of this decline – what I am calling labor law illiteracy. The majority in Epic Systems seems to misunderstand one of the basic principles of the National Labor Relations Act, and the majority in Janus based its decision, in part, on a simplistic and one-sided view of the justifications for public sector labor law and collective bargaining.","PeriodicalId":300536,"journal":{"name":"Roger Williams university law review","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127611584","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this article I refute the argument, made by many scholars in the immediate aftermath of the announcement of United States v. Windsor on June 26, 2013 (striking down Section 3 of the Defense of Marriage Act (DOMA)), that Justice Kennedy’s opinion for the Court in that case is primarily a federalism decision. Drawing on arguments that I made in The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty (2009), I argue that in Windsor the commitment made by the Justice is instead very clearly to equal liberty, just as it was in Romer v. Evans (1996) and Lawrence v. Texas (2003). That commitment wholeheartedly embraces the spirit of egalitarianism and social justice that lies at the heart of the legacy of the Great Society speech that President Johnson gave at the University of Michigan fifty years ago, in May 1964. The “abundance and liberty for all” imperative of which the President spoke was at the time focused upon, and remains today best-remembered for addressing racial and wealth inequities. However, the progressive themes of the speech are grounded in broader moral principles that today apply as much to the battles fought on behalf of the LGBT community as to those designed to combat the ills of racism and poverty. The articulation of those themes in Windsor gets lost if analysis of Justice Kennedy’s majority opinion in that case focuses not on equal liberty but on federalism.
{"title":"Taking Justice Kennedy Seriously: Why Windsor Was Decided \"quite apart from principles of federalism","authors":"H. Knowles","doi":"10.2139/SSRN.2319487","DOIUrl":"https://doi.org/10.2139/SSRN.2319487","url":null,"abstract":"In this article I refute the argument, made by many scholars in the immediate aftermath of the announcement of United States v. Windsor on June 26, 2013 (striking down Section 3 of the Defense of Marriage Act (DOMA)), that Justice Kennedy’s opinion for the Court in that case is primarily a federalism decision. Drawing on arguments that I made in The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty (2009), I argue that in Windsor the commitment made by the Justice is instead very clearly to equal liberty, just as it was in Romer v. Evans (1996) and Lawrence v. Texas (2003). That commitment wholeheartedly embraces the spirit of egalitarianism and social justice that lies at the heart of the legacy of the Great Society speech that President Johnson gave at the University of Michigan fifty years ago, in May 1964. The “abundance and liberty for all” imperative of which the President spoke was at the time focused upon, and remains today best-remembered for addressing racial and wealth inequities. However, the progressive themes of the speech are grounded in broader moral principles that today apply as much to the battles fought on behalf of the LGBT community as to those designed to combat the ills of racism and poverty. The articulation of those themes in Windsor gets lost if analysis of Justice Kennedy’s majority opinion in that case focuses not on equal liberty but on federalism.","PeriodicalId":300536,"journal":{"name":"Roger Williams university law review","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128950427","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Despite its historic presence in American law, comparative law was until recently largely the preserve of a few specialists, often emigres from Europe. On occasion a legal scholar from another field would consider and employ comparative methods, but for the most part American legal scholars focused only on domestic legal matters from domestic perspectives. If they did tend to look further afield, it was usually to consider legal issues in England or, less often, in other common law or English language legal systems. Practitioners and policy makers were not any more sophisticated and indeed were likely even more parochial. Today, however, certain factors, chief among them the accelerating rate of globalization, are forcing a change in perspective throughout the legal community. Increasingly American legal scholars, practitioners and policy makers are considering how legal issues are handled in other legal systems - through an international, foreign and comparative law lens. That movement is not taking place, however, without controversy and, of greater relevance to this article, without some levels of misunderstanding, inaccuracy and confusion.
{"title":"Comparative Law Methodology & American Legal Culture: Obstacles and Opportunities","authors":"Colin B. Picker","doi":"10.2139/SSRN.1544489","DOIUrl":"https://doi.org/10.2139/SSRN.1544489","url":null,"abstract":"Despite its historic presence in American law, comparative law was until recently largely the preserve of a few specialists, often emigres from Europe. On occasion a legal scholar from another field would consider and employ comparative methods, but for the most part American legal scholars focused only on domestic legal matters from domestic perspectives. If they did tend to look further afield, it was usually to consider legal issues in England or, less often, in other common law or English language legal systems. Practitioners and policy makers were not any more sophisticated and indeed were likely even more parochial. Today, however, certain factors, chief among them the accelerating rate of globalization, are forcing a change in perspective throughout the legal community. Increasingly American legal scholars, practitioners and policy makers are considering how legal issues are handled in other legal systems - through an international, foreign and comparative law lens. That movement is not taking place, however, without controversy and, of greater relevance to this article, without some levels of misunderstanding, inaccuracy and confusion.","PeriodicalId":300536,"journal":{"name":"Roger Williams university law review","volume":"106 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-01-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124226817","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably "freedom of conscience." But some observers also perceive a progressive cheapening of conscience - even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke "conscience," do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what "conscience" is or why it matters? This essay addresses two questions. The first is discussed briefly: what is "conscience"? What do we have in mind when we say that someone acted from "conscience"? A second question receives more extended discussion: granted its importance to the individuals who assert it, still, why should "conscience" deserve special respect or accommodation from society, or from the state? That question forces us to consider the metaethical presuppositions of claims of conscience. The discussion suggests that claims to conscience may be defensible only on certain somewhat rarified moral and metaethical assumptions. The discussion further suggests that shifts in such assumptions have transformed the meaning of claims to "freedom of conscience," so that such claims typically now mean almost the opposite of what they meant when asserted by early champions of conscience such as Thomas More, Roger Williams, and John Locke.
{"title":"The Tenuous Case for Conscience","authors":"S. Smith","doi":"10.2139/SSRN.590944","DOIUrl":"https://doi.org/10.2139/SSRN.590944","url":null,"abstract":"If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably \"freedom of conscience.\" But some observers also perceive a progressive cheapening of conscience - even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke \"conscience,\" do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what \"conscience\" is or why it matters? This essay addresses two questions. The first is discussed briefly: what is \"conscience\"? What do we have in mind when we say that someone acted from \"conscience\"? A second question receives more extended discussion: granted its importance to the individuals who assert it, still, why should \"conscience\" deserve special respect or accommodation from society, or from the state? That question forces us to consider the metaethical presuppositions of claims of conscience. The discussion suggests that claims to conscience may be defensible only on certain somewhat rarified moral and metaethical assumptions. The discussion further suggests that shifts in such assumptions have transformed the meaning of claims to \"freedom of conscience,\" so that such claims typically now mean almost the opposite of what they meant when asserted by early champions of conscience such as Thomas More, Roger Williams, and John Locke.","PeriodicalId":300536,"journal":{"name":"Roger Williams university law review","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114981344","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Products liability law has witnessed a long debate over whether manufacturers should be held strictly liable for the injuries that products cause. Recently, some have argued that psychological research on human judgment supports adopting a regime of strict enterprise liability for injuries caused by product design. These new proponents of enterprise liability argue that the current system, in which manufacturer liability for product design turns on the manufacturer's negligence, allows manufacturers to induce consumers into undertaking inefficiently dangerous levels or types of consumption. In this paper we argue that the new proponents of enterprise liability have: (1) not provided any more than anecdotal evidence for their thesis; (2) failed to account for the mechanisms the law already has available to counter manufacturer manipulation of consumers; and (3) made no effort to address the well-known problems enterprise liability creates. Furthermore, even on its own terms, the new arguments for enterprise liability fail to consider the tendency of some manufacturers to exacerbate the risks that some products pose ? a tendency that enterprise liability would exacerbate. In short, the insights gleaned from psychological research on human judgment do not support adopting a system of strict enterprise liability for products.
{"title":"Product-Related Risk and Cognitive Biases: The Shortcomings of Enterprise Liability","authors":"J. Henderson, J. Rachlinski","doi":"10.2139/SSRN.256724","DOIUrl":"https://doi.org/10.2139/SSRN.256724","url":null,"abstract":"Products liability law has witnessed a long debate over whether manufacturers should be held strictly liable for the injuries that products cause. Recently, some have argued that psychological research on human judgment supports adopting a regime of strict enterprise liability for injuries caused by product design. These new proponents of enterprise liability argue that the current system, in which manufacturer liability for product design turns on the manufacturer's negligence, allows manufacturers to induce consumers into undertaking inefficiently dangerous levels or types of consumption. In this paper we argue that the new proponents of enterprise liability have: (1) not provided any more than anecdotal evidence for their thesis; (2) failed to account for the mechanisms the law already has available to counter manufacturer manipulation of consumers; and (3) made no effort to address the well-known problems enterprise liability creates. Furthermore, even on its own terms, the new arguments for enterprise liability fail to consider the tendency of some manufacturers to exacerbate the risks that some products pose ? a tendency that enterprise liability would exacerbate. In short, the insights gleaned from psychological research on human judgment do not support adopting a system of strict enterprise liability for products.","PeriodicalId":300536,"journal":{"name":"Roger Williams university law review","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124727196","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
"Law-and-economics," an influential perspective among some in law (and possibly a few in economics), seeks to apply the basic assumption of economics ? that people are "rational maximizers" (i.e., will try to get the most out of what they have) ? to law. Rational Choice Theory provides the conceptual core of Law-and-economics. After briefly discussing the intellectual heritage of Rational Choice Theory, we address three things. Operating from a consumer psychological perspective, first we examine fundamental assumptions underlying Rational Choice Theory and conclude that many either are, or approach being, untenable. Next, we comment upon arguments raised by Judge Richard Posner (one of the leading proponents of this theory) in defense and elucidation of Rational Choice Theory. We conclude by offering some suggestions which, if adopted, we believe will advance the empirical assessment of Rational Choice Theory.
{"title":"Is it Rational to Assume Consumer Rationality? Some Consumer Psychological Perspectives on Rational Choice Theory","authors":"J. Jacoby","doi":"10.2139/SSRN.239538","DOIUrl":"https://doi.org/10.2139/SSRN.239538","url":null,"abstract":"\"Law-and-economics,\" an influential perspective among some in law (and possibly a few in economics), seeks to apply the basic assumption of economics ? that people are \"rational maximizers\" (i.e., will try to get the most out of what they have) ? to law. Rational Choice Theory provides the conceptual core of Law-and-economics. After briefly discussing the intellectual heritage of Rational Choice Theory, we address three things. Operating from a consumer psychological perspective, first we examine fundamental assumptions underlying Rational Choice Theory and conclude that many either are, or approach being, untenable. Next, we comment upon arguments raised by Judge Richard Posner (one of the leading proponents of this theory) in defense and elucidation of Rational Choice Theory. We conclude by offering some suggestions which, if adopted, we believe will advance the empirical assessment of Rational Choice Theory.","PeriodicalId":300536,"journal":{"name":"Roger Williams university law review","volume":"60 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124553488","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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