The Cost of Older Workers: How the ADEA Has Been Interpreted to Allow Employers to Fire Older Employees Based on Cost Concerns – Article by Lee Franck

From Volume 76, Number 6 (September 2003)
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The Age Discrimination in Employment Act (“ADEA”) was enacted to promote the ability of older workers to compete in today’s marketplace. It recognized a disturbing change in the way that companies were treating older workers. Historically, older workers were regarded as a valuable commodity because of their skill and experience. The advance of the modern age brought about a shift in ideologies in corporate America. Older workers came to be considered a liability in the fast-paced business world. Congress drafted the ADEA to eliminate unfounded stereotypes of older workers as less productive and more expensive to employ. It gave statutory protection against discrimination to anyone over forty years of age.

 

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Volume 76, Number 5 (July 2003)

Volume 76, Number 5 (July 2003)

None of Your Business (Interest): The Argument for Protecting All Employee Behavior with No Business Impact – Note by Jason Bosch

From Volume 76, Number 5 (July 2003)
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At the beginning of the twentieth century, major American companies had entire departments staffed with hundreds of—sociological specialists who were charged with monitoring the private behavior of company employees—often in their homes—to make sure they did not drink too much, had appropriate sex lives, kept their houses clean, and used their leisure time properly. Worker privacy and autonomy has made tremendous advances since that time, but even today employers continue to take actions against employees whose off-the-job behavior they find objectionable. Recent examples of employee—offenses include cohabitating with a partner outside of marriage, smoking, drinking, motor-cycling, and even having a high cholesterol level.

The baseline presumption at common law is that employment is at the will of either party. Even with the modern dilution of this doctrine and the many exceptions that have been carved out by courts and by statute, employers still have the ability to discharge, or constructively discharge, an employee for doing anything not protected by a specific statute or not included in the nebulous protection against violations of—public policy. This broad deference to employers’ judgment in employment matters is a result of judicial reluctance and inability to deal with issues relating to business efficiency and job performance. At-will employment encourages the flexibility and freedom needed for managers to make efficient decisions that best help their businesses compete in the marketplace. Certainly there is a consensus that managers know much better than judges what policies are needed to foster peak performance from their workforce. However, employees should not have to relinquish autonomy over every aspect of their lives just to get or keep a job. Employers have a vested interest in controlling those aspects of employees’ lives that reasonably affect the employees’ performance on the job, but that does not justify giving employers carte blanche to control every aspect of their employees’ lives. This Note argues that employers should only be able to take employment actions against employees for behavior that sufficiently impacts legitimate business interests.

 

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The Takings Clause As a Comparative Right – Article by John E. Fee

From Volume 76, Number 5 (July 2003)
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The role of the Takings Clause of the Fifth Amendment in requiring compensation for government actions that treat landowners unequally is seldom explored. This is remarkable given that the Supreme Court has said for more than a century that the Takings Clause “prevents the public from loading upon one individual more than his just share of the burdens of government, and says that when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equivalent shall be returned to him.”

One might infer from this description of the Fifth Amendment that the regulatory takings doctrine should have developed as a comparative right (a species of equal protection law)—a right to be treated legally the same as other property owners in a community, or to receive compensation when differential treatment is justified. Indeed, when the Supreme Court first held that the Fourteenth Amendment incorporated the rule that government may not take private property without just compensation, it relied on the Equal Protection Clause, not the Due Process Clause.

The comparative-right basis for the takings doctrine, however, is largely ignored in modern regulatory takings law. Our regulatory takings doctrine today functions more like a substantive due process right. Similar to due process cases prohibiting excessive punitive damages awards, the law of regulatory takings is commonly understood as a defense for individuals against government actions that are extreme and unreasonable as applied to the individual, rather than as a guarantee of equal treatment among members of a community. Whether regulation of one owner’s property has gone “too far” for regulatory takings purposes is determined independently of how the government regulates other owners.

 

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Copyright Law As a Silencing Restriction on Noninfringing Materials: Unveiling the Scope of Copyright’s Diversity Externalities – Article by Guy Pessach

From Volume 76, Number 5 (July 2003)
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The main argument presented in this Article is that the harms and social costs of copyright cannot be summarized just in terms of enclosure and exclusion. Copyright law, I will argue, also has a silencing effect toward noninfringing creative materials of other independent creators and producers.

Recent scholarly work has emphasized copyright’s “dynamic effect,” that is, the ongoing influence of expansive copyright protection toward an enclosure of the creative commons, and diminishment of cultural diversity. On the whole, however, this broad approach regarding the social cost of copyright in terms of diversity has focused only on instances and frameworks of creative activity in which a secondary author wishes to make use of existing copyrighted material, while a copyright owner (often a media conglomerate) imposes obstacles and limitations against such a use.

The argument presented in this Article goes one step further in exploring the nexus of copyright and diversity. As I will show, an expanded copyright regime diminishes diversity in a more intrusive manner. Extensive copyright protection also has a chilling effect on the variety and diversity of creative works that are both noninfringing and not affiliated to copyright portfolios, or to the communicative activity, of commercialized corporate media. This outcome derives from the advantages extensive copyright protection affords to excessive exposure of corporate media’s creative materials, as well as to the economic and cultural dominance of these media products.

 

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Reading Zelman: The Triumph of Pluralism, and Its Effect on Liberty, Equality, and Choice – Article by Joseph P. Viteritti

From Volume 76, Number 5 (July 2003)
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In June 2002, the United States Supreme Court approved an Ohio program that made available publicly supported vouchers for children in Cleveland to attend private (nonsectarian) and religious schools. Writing for a five-member majority in Zelman v. Simmons-Harris, Chief Justice William Rehnquist held that the Ohio program did not violate the Establishment Clause of the First Amendment because it (1) has a valid secular purpose of providing educational assistance to poor children; (2) is neutral with respect to religion and provides assistance to a broad class of citizens; and (3) provides aid to religious institutions only as a result of independent decisions made by the parents of the school children participating in the program. The Chief Justice further explained that the ruling was consistent with a line of judicial reasoning dating back to 1983, when the Supreme Court approved an education tax deduction adopted in Minnesota. In a concurring opinion, Justice Sandra Day O’Connor took a broader view of First Amendment jurisprudence, indicating that the majority ruling in Zelman was consistent with case law that allowed tax exemptions and other forms of government aid for religious institutions. Justice Clarence Thomas also concurred with the majority. Citing Brown v. Board of Education, Justice Thomas emphasized that the program in question was a well-intentioned attempt by the state “to provide greater educational opportunity for underprivileged minority students.” He further opined that incorporating the Establishment Clause to prohibit the kind of educational choice that the Ohio program provides would have the ironic effect of employing the Fourteenth Amendment to curtail liberty rights protected by the Free Exercise Clause of the First Amendment.

 

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Race, Reasonableness, and the Rule of Law – Note by Aaron Goldstein

From Volume 76, Number 5 (July 2003)
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In recognition of the fearsome powers faced by defendants, the criminal justice system has built into it a multitude of counterbalancing defendants’ rights. There exists, however, a special breed of criminal trial involving a third and even weaker voice, a voice that may not even be heard during the trial. Criminal defendants who claim they committed acts of violence only in self-defense place their victims on trial – sometimes rightfully, sometimes to avoid well-deserved guilt. The wealth of protections afforded to criminal defendants give them wide latitude to attack victims who do not enjoy such robust protections.

While a rich dialogue regarding victims’ rights in general already exists, this Note focuses on a particular type of victim and a particular type of attack. This Note deals with the play of the race card by criminal defendants to justify their decision to maim or kill, and argues that appeals to racial stereotypes ought to be excluded under the Rules of Evidence. Not only would this serve to protect the rights of the victim to a fair assessment of the victim’s actions at trial, but it would also have positive reverberations among law enforcement and private citizens outside the court. Such evidentiary rules would put everyone on notice that race is no basis for taking a life.

Part I of this Note discusses particular instances where racial stereotypes have played a part in a claim of self-defense. Part II provides a normative argument for why evidence regarding a victim’s race ought to be excluded. This Part also differentiates claims of self-defense that involve appeals to race from claims that do not rely on socially constructed generalizations regarding race, gender, and so on. Part III provides a legal basis and a formal proposal for a rule excluding evidence of the victim’s race as well as suggestions for how such exclusions might be implemented.

 

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Supplying the Tax Shelter Industry: Contingent Fee Compensation for Accountants Spurs Production – Note by Ben Wang

From Volume 76, Number 5 (July 2003)
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The use of abusive tax shelters by major corporations has been called “‘the most serious compliance issue threatening the American tax system . . . .’” Losses to the Department of the Treasury (“Treasury”) are estimated to range anywhere from $7 billion to $30 billion per year. Meanwhile, corporate profits have risen 23.5% while their corresponding tax obligations rose by only 7.7%. Personal income taxes, on the other hand, are up 44%, which represents 79% of the total federal income tax and is estimated to increase to 85% by the year 2004. Also astounding is that the corporate tax-to-profit ratio has dropped between 1.5% and 2.9%, roughly translating into a decrease in corporate income tax receipts between $13 and $24 billion. Although the decrease in corporate tax receipts is unlikely to be attributed to a single cause, many commentators point to the growing acceptance of abusive tax shelters by large corporations as a major contributor.

The growing acceptance of abusive tax shelters by large corporations has been characterized as a “race to the bottom.” The perception that competitors are actively participating in abusive tax shelters has created an environment ripe for the promotion of tax schemes promising to zero out a corporation’s taxes. The major accounting firms are using armies of professionals to promote these schemes. Moreover, they have developed the resources, both in expertise and manpower, to capitalize on and perpetuate the perception. The role played by the Big Five in the tax shelter industry is extensive. They have created for themselves a vested interest in the proliferation of tax shelters through the use of contingency fees.

 

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