Unfulfilled Promises

The passage of the ACA is a source of great pride for President Barack Obama\u27s Administration, and the President undoubtedly hopes that the ACA will be his greatest legacy. 285 As a result, it is difficult to understand why, under his administration, HHS has relinquished its rulemaking authority to the states regarding the core guarantees of the Act. For the individuals living in states in which promised essential health benefits have not yet become a reality, HHS has offered a glimmer of hope. In 2012, the agency released a bulletin stating that it would revisit its approach of allowing states to define required insurance benefits for the 2016 plan year.286 Whether HHS will follow through on this assurance remains uncertain-so far, there are no signs of HHS making any changes, even though 2016 has arrived. What is certain is that until the agency follows through on this assurance, many of the ACA\u27s core promises will remain unfulfilled

Paid Sick Leave\u27s Payoff

Perhaps paid sick days have never been more valuable than during the COVID-19 pandemic. Yet even before COVID-19, seventeen states and the District of Columbia began passing legislative mandates that employers provide employees with paid sick leave (“PSL”) days. Most of this legislation requires employers to provide up to one week of PSL for both full- and part-time employees, which they can utilize with few notice or documentation requirements. Using the 2017–2018 American Time Use Survey Leave and Job Flexibilities Module, I first demonstrate that workers in PSL states are less likely to go to work sick, which may, in turn, reduce concerns about the spread of infectious disease in the workplace. Next, I present evidence from the 2020–2021 Current Population Survey that workers in PSL states have enjoyed higher employment rates and labor market participation rates during the pandemic than have similarly situated workers in non-PSL states. By enabling employeesto take short-term leave when either they or an immediate family member fall ill-—without risk of job or income loss-—PSL legislation may help stabilize employment and keep workers attached to the labor market

Becoming Visible

This Article will consider the consequences of a large number of workers making their health conditions known to their employers during the pandemic. Becoming visible will likely have short-term costs for both employers and employees-—in terms of health-status discrimination, privacy, and administrative burdens. Nonetheless, this Article will ultimately argue that becoming visible also has a major benefit: improved information flow between employers and employees. Although the long-run cost-benefit analysis of increased health-status visibility during the pandemic remains to be seen, increased visibility ultimately has the potential to improve the employer-employee relationship

Without Accommodation

Under the Americans with Disabilities Act (ADA), workers with disabilities have the legal right to reasonable workplace accommodations provided by employers. Because this legal right is unique to disabled workers, these workers could, in theory, enjoy greater access to the types of accommodations that are desirable to all workers including the ability to work from home, to work flexible hours, and to take leave. This Article compares access to these accommodations, which have become increasingly desirable during the COVID-19 pandemic, between disabled workers and nondisabled workers. Using 2017-2018 data from the American Time Use Survey\u27s Leave and Job Flexibilities Module, I find that disabled workers report far less access to these pandemic-relevant accommodations than do nondisabled workers. I further present evidence that disabled workers\u27 lower rates of access to pandemic-relevant accommodations are due, in part, to occupational segregation. Because disabled workers are more likely to work in jobs that are not amenable to working from home, working flexible hours, and taking temporary leave, the results raise concerns about many disabled workers\u27 ability to maintain their employment during the pandemic. The results further highlight the inherent weaknesses of the ADA and the need for additional supporting legislation including short-term insurance and educational funding programs for disabled workers

The Beijing Treaty on Free Expression: How Stopping Digital Piracy May Cost the World Free Expression

The Beijing Treaty on Audiovisual Performances grants, for the first time, international rights to performers to protect their work in an audiovisual medium. This is a step forward in protecting audiovisual media from international piracy or infringement, but comes at a cost. While performers’ economic rights are kept in check by fair use defenses (favored uses designed to promote the creation of new works) performers’ moral rights from the Beijing Treaty contain no counterbalancing defense. This Comment argues that without this counterbalancing defense, performers may assert these moral rights against other artists unchecked, consequently chilling the free expression that copyright laws are supposed to foster

The Substantially Impaired Sex

In making the case for increased attention to and expanded legal remedies for disabled women who experience labor market discrimination, this Article proceeds as follows: Part I reviews previous work on intersectional discrimination, which, heretofore, has focused almost exclusively on the experience of African-American women. Part II examines the EEOC data, which details the universe of ADA charges filed with the agency from 2000 to 2009. The EEOC data make clear how men\u27s and women\u27s disability charges differ, and the data also provide a great deal of evidence as to why men\u27s and women\u27s disability charges differ. Part III considers alternative hypotheses for the empirical findings in Part II, but ultimately concludes that women file more ADA charges than do men, because disabled women encounter more labor market discrimination than do men. Part IV evaluates the remedies available to disabled women

Settling in the Shadow of Sex: Gender Bias in Marital Asset Division

Divorce has a long history of economically disempowering women. From the time of coverture to the era of modern divorce reform, women have been persistently disadvantaged by divorce relative to men. Family law scholars have long attributed this disadvantage to the continued prevalence of traditional gender roles and the failure of current marital asset division laws to account adequately for this prevalence. In spite of the progress made by the women\u27s movement over the past half-century, married, heterosexual women endure as the primary caretaker in the majority of households, and married, heterosexual men endure as the primary breadwinners. Undoubtedly, women who have made career sacrifices during a marriage face a harsh economic reality when the marriage breaks down. But this Article is the first to question whether the persistence of traditional gender roles is solely responsible for the gender imbalances in economic security following a divorce. Instead, this Article posits that gender bias against women-bias that is completely separate from women\u27s caretaking or breadwinning status-also harms women in divorce proceedings. This gender bias may be harbored by judges, mediators, lawyers, and even litigants themselves. To test this theory, the Article utilizes an experimental vignette study, fielded on 3,022 subjects. Subjects were randomly assigned to view one of several highly similar scenarios where a couple is divorcing after a long-term marriage, and asked to divide marital assets between them. In half of the scenarios, the male spouse was the sole breadwinner and the female spouse was the principal caretaker, consistent with traditional gender roles. But in the other half of the scenarios, the situation was reversed, with the female as the sole breadwinner and the male as the primary caretaker. Comparing results across subjects reveals that subjects consistently favored the male spouse over the similarly situated female spouse. On average, both male and female subjects assigned a greater share of the marital assets to the male breadwinner than to the female breadwinner. Male and female subjects also assigned a greater share of the marital assets to the male caretaker than to the female caretaker. The results are consistent with gender bias, as subjects penalize the female spouse in both the stereotypic (male-breadwinner/female-caretakera) nd the nonstereotypic (femalebreadwinner/male-caretaker) scenarios. Given these sustained preferences for the male spouse in the divorce setting, the Article concludes by considering empathy induction, auditing, and legal presumption reforms to counter the effects of bias in divorce settlements and to assist women, at last, in gaining equivalent economic standing with men after a divorce

Slipping Away from Justice: the Effect of Attorney Skill on Trial Outcomes

Just how important is a good attorney? Can a skillful attorney actually change the verdict? More importantly, in criminal trials, can a good defense attorney let guilty people go free, or can a good prosecutor send innocent people to jail? Every day, as more highprofile defendants find themselves in court, the anecdotal evidence of this attorney skill effect continues to mount. Yet no one has decisively answered these questions-not only for high-profile defendants, but for the everyday defendant as well. This Note will argue that a skillful defense attorney is not as powerful as popular opinion would lead us to believe. Here, I define skill as the qualities that an attorney brings to the courtroom independent of his case\u27s strength, such as rhetorical abilities, tactical strategies, and knowledge of the law. Regardless of their skill, criminal defense attorneys do not have a statistically significant effect on the verdict or sentencing outcomes. Prosecuting attorneys, on the other hand, can influence trial outcomes. A jury is more likely to convict a defendant when the prosecutor has a high level of skill. Although important for many reasons, Prosecutorial skill is particularly critical since the prosecution has the burden of proof in a criminal trial. This outcome that emphasizes the impact of prosecutorial skill-running so contrary to our everyday beliefssuggests that we have been focusing on the wrong side. Just like Fred Goldman, we are quick to blame the defense attorneys when we think a high-profile defendant has slipped away from justice. For more lowprofile defendants, we are overly preoccupied with the adequacy of, and the disparities in, defense attorneys. Yet we should really be concerned about the disparities in prosecutors. To demonstrate the importance of prosecuting attorney skill, Part II of this Note first considers previous literature from law and other disciplines on the impact of attorney skill. Part III discusses the data set used to conduct this study, and Part IV outlines the model of the attorney skill effect. Part V gives the results of the data analysis and demonstrates the effect of prosecuting attorney skill on trial outcomes-and the lack of effect of defense attorney skill on trial outcomes. Part VI argues that public attention should shift away from defense attorneys and onto prosecutors. If we expect defendants to receive a fair trial, we need to devote more resources to ensuring that prosecutors are well qualified and adequately trained to eliminate the disparities between them. Part VII concludes by relating these results to the attorney skill effect so often discussed in the popular press