The Foggy Road for Evaluating Punitive Damages: Lifting the Haze from the BMW/State Farm Guideposts

In light of increasing punitive damages awards, the United States Supreme Court formulated criteria for evaluating whether a punitive damages award is so unreasonably large that it violates substantive due process. Unfortunately, these "guideposts," which were first erected in BMW v. Gore and applied last term in State Farm v. Campbell, are difficult to use and have resulted in inconsistent decisions. Indeed, Justice Scalia stated that they "mark a road to nowhere." The authors argue that the problems with the guideposts can be fixed by refining the third guidepost, which compares the punitive damages award to the criminal (or civil) sanctions that could be imposed for comparable misconduct. To date, the Court's decisions have obfuscated this guidepost and, not surprisingly, it has largely been ignored by courts and commentators. The authors propose that courts, in applying the third guidepost, view comparable criminal (and civil) sanctions as a "presumptive limit" on punitive damages. This approach is consistent with the Court's views on the subject, satisfies the due process need for notice, is respectful of federalism concerns, and allows for greater proportionality and nuance while evaluating punitive damages awards. Most importantly, it should be easy to apply and result in more uniform decisions.

Out-of-pocket spending and financial burden among low income adults after Medicaid expansions in the United States: quasi-experimental difference-in-difference study.

OBJECTIVE:To examine the association between expansion of the Medicaid program under the Affordable Care Act and changes in healthcare spending among low income adults during the first four years of the policy implementation (2014-17). DESIGN:Quasi-experimental difference-in-difference analysis to examine out-of-pocket spending and financial burden among low income adults after Medicaid expansions. SETTING:United States. PARTICIPANTS:A nationally representative sample of individuals aged 19-64 years, with family incomes below 138% of the federal poverty level, from the 2010-17 Medical Expenditure Panel Survey. MAIN OUTCOMES AND MEASURES:Four annual healthcare spending outcomes: out-of-pocket spending; premium contributions; out-of-pocket plus premium spending; and catastrophic financial burden (defined as out-of-pocket plus premium spending exceeding 40% of post-subsistence income). P values were adjusted for multiple comparisons. RESULTS:37 819 adults were included in the study. Healthcare spending did not change in the first two years, but Medicaid expansions were associated with lower out-of-pocket spending (adjusted percentage change -28.0% (95% confidence interval -38.4% to -15.8%); adjusted absolute change -122 (£93; €110); adjusted P<0.001), lower out-of-pocket plus premium spending (-29.0% (-40.5% to -15.3%); -442; adjusted P&lt;0.001), and lower probability of experiencing a catastrophic financial burden (adjusted percentage point change -4.7 (-7.9 to -1.4); adjusted P=0.01) in years three to four. No evidence was found to indicate that premium contributions changed after the Medicaid expansions. CONCLUSION:Medicaid expansions under the Affordable Care Act were associated with lower out-of-pocket spending and a lower likelihood of catastrophic financial burden for low income adults in the third and fourth years of the act's implementation. These findings suggest that the act has been successful nationally in improving financial risk protection against medical bills among low income adults

Beyond Supreme Court Anti-Discrimination: An Essay on Racial Subordinations, Racial Pleasures and Commodified Race

In recent years, the Supreme Court has narrowed its examination of racial subordinations to focus upon three doctrinal approaches: disparate treatment racial discrimination, the intent theory of racial discrimination, and suspect category strict scrutiny. Taken together, these three doctrines mutually reinforce racial discrimination as the only available legal understanding of racial subordination. Faced with the Court's ever contracting list of issues available for discussion, some scholars have chosen to investigate outside the Court's constricted understanding of race. This Essay begins by noting that racial subordinations—social subordinations premised on a schema of body types—are multiple and not limited to a single, narrow understanding. After introducing the Supreme Court's restrictive approach in Section I, I examine in Section II recent scholarship on racial subordination that has pressed beyond the doctrinal confines created by the Supreme Court. I review authors discussing Title VII, common law contract, racial tropes, implicit bias, patent law, and trademark. Section III examines Professor Anthony Farley's concept of racial pleasure—the idea that racial subordination gives pleasure to its participants. Racial pleasure is a form of racial subordination that falls outside of the Supreme Court's understanding of racial subordination as racial discrimination. Through the examination of race in computer games, I suggest two distinctions. I observe a legal distinction between racial pleasures and commodified racial pleasures, and a normative legal distinction between permitted racial pleasures and illicit racial pleasures. Section III ends with a proposed standard for constitutional review of state regulation of illicit racial pleasures. As another interpretation of racial subordination, Section IV proposes a theorization of commodified race through Marx' theory of commodity circulation

Failure of the Color-Blind Vision: Race, Ethnicity, and the California Civil Rights Initiative

Advocates for the California Civil Rights Initiative have argued that they seek racial justice in a color-blind society. In this Article, Professor Gotanda first analyzes race color blindness to show that the color-blind vision is far from a truly open and just vision, but instead undermines efforts to achieve genuine social justice. The second section examines Hopwood v. Texas, a recent Fifth Circuit decision, and concludes that the majority opinion pursues an extremist color-blind vision which would deny any validity to the history and culture of women or racial and ethnic minorities. The third section examines the textual language of the California Civil Rights Initiate and finds ambiguous provisions which would not only eliminate affirmative action, but would prohibit ethnic and women\u27s studies programs throughout California\u27s educational system. The Article concludes by examining Justice Harlan\u27s famous dissent in Plessy v. Ferguson and observes that Harlan\u27s use of race color blindness supports continued white racial supremacy. Professor Gotanda calls for abandoning reactionary efforts to return to Harlan\u27s nineteenth century understanding and instead moving forward towards a truly just society

A further cost for the sicker sex? Evidence for male-biased parasite-induced vulnerability to predation

Males are typically the sicker sex. Data from multiple taxa indicate that they are more likely to be infected with parasites, and are less ‘tolerant’, or less able to mitigate the fitness costs of a given infection, than females. One cost of infection for many animals is an increased probability of being captured by a predator. A clear, hitherto untested, prediction is therefore that this parasite-induced vulnerability to predation is more pronounced among males than females. We tested this prediction in the sexually size dimorphic guppy, Poecilia reticulata, in which females are typically larger than males. We either sham or experimentally infected guppies with Gyrodactylus turnbulli, elicited their escape response using an established protocol and measured the distance they covered during 60 ms. To discriminate between the effects of body size and those of other inherent sex differences, we size-matched fish across treatment groups. Infection with G. turnbulli reduced the distance covered during the escape response of small adults by 20.1%, whereas that of large fish was unaffected. This result implies that parasite-induced vulnerability to predation is male-biased in the wild: although there was no difference in escape response between our experimentally size-matched groups of males and females, males are significantly smaller across natural guppy populations. These results are consistent with Bateman’s principle for immunity: natural selection for larger body sizes and longevity in females seems to have resulted in the evolution of increased infection tolerance. We discuss the potential implications of male-biased parasite-induced vulnerability for the evolutionary ecology of this host-parasite interaction in natural communities

An insight into the reproductive biology of the bearded goby Sufflogobius bibarbatus

Preliminary results obtained from histological analyses of the male reproductive organs, supplemented with field and behavioural data, indicate that Sufflogobius bibarbatus, a small, slow growing gobiid exhibiting low fecundity, which plays an important role in the food web off Namibia, where large areas of the shelf are hypoxic, spawns demersally. Large males defend benthic nests, possibly at the edge of the hypoxic shelf. Male reproductive strategy appears to be flexible, and tentative evidence to suggest that polygyny and sneaking may also occur is presented.Web of Scienc

Using the Unidroit Principles to Fill Gaps in the CISG

The United Nations Convention on the International Sale of Goods (CISG) sets forth only a basic framework for the recovery of damages, thereby giving a court of tribunal broad authority to determine an aggrieved party’s loss based on circumstances of the particular case. Unfortunately, the lack of specificity has resulted in much litigation, and seemingly conflicting results. To remedy this problem, some have argued that the gaps in the CISG damages provisions should be filled with the UNIDROIT Principles of International Commercial Contracts. In this paper, I argue that the gap-filling rules of CISG preclude the UNIDROIT Principles from being used as the primary source of authority for resolving issues not expressly settled by the Convention. However, the Principles may still have a role to play. They help us understand the general principles of the CISG that guide courts and tribunals in resolving matters not expressly dealt with in the Convention. In addition, they provide support for solutions to open issues reached through an analysis of the Convention itself