Recent Articles in Volume 76, Issue 2 (2023)
By Jessica Fink – Sexual harassment has become a fact of the modern workplace—something that society laments and regrets, but that rarely shocks the conscience when it comes to light. In fact, both the least and most surprising aspect of workplace sexual harassment is the number of individuals who are aware of it occurring. For every Harvey Weinstein, Matt Lauer, and Louis C.K., there have been countless observers who knew about their depravity and who did nothing to stop their behavior. In this way, one obvious approach for reducing harassment at work seems clearly to involve mobilizing these bystanders—encouraging those who witness this misconduct to come forward and report the wrongdoing. Yet for a variety of reasons, bystanders often (quite rationally) choose to remain silent. This Article suggests a novel approach to overcome the forces that inhibit bystanders from speaking out. [...]
By Heather R. Abraham – Appraisal discrimination not only persists, but its influence has actually increased in some housing markets. New studies document how contemporary appraisal methods operate as systemic racism, such as how appraisers select from a narrower set of comparable properties when appraising homes in predominantly Black neighborhoods. Recent events have renewed public attention to appraisal discrimination, from shocking news stories to a new multiagency federal task force. In tandem, a new wave of litigation has emerged. [...]
By Lital Helman – Innovation is a public good. As with other public goods, it is expected to be underproduced if only private incentives are present. Therefore, the law strives to encourage innovation via an array of stimulus mechanisms. The law offers three main mechanisms: intellectual property (IP), cash transfers—mainly prizes and grants—and tax incentives. Vast literature analyzes and compares these innovation stimuli in search of the optimal mix to boost innovation. Yet a key problem is largely overlooked: together, the existing stimuli do not cover the lion’s share of the innovation lifecycle. [...]
By Mailyn Fidler – Searches intrude; fundamentally, they infringe on a right to exclude. So that right should form the basis of Fourth Amendment protections. Current Fourth Amendment doctrine—the reasonable expectation of privacy test—struggles with conceptual clarity and predictability. The Supreme Court’s recent decision to overturn Roe v. Wade casts further doubt on the reception of other privacy-based approaches with this Court. But the replacement approach that several Justices on the Court favor, what I call the “maximalist” property approach, risks troublingly narrow results.
By Sarah E. Burns & Sarah S. Wheeler – Across the United States, and especially in communities that are highly policed and in places hostile to abortion, pregnant people are dying, suffering, being separated from their children and families, and going to jail and prison in purported service of the state interest in fetal life recognized in Roe v. Wade and expanded in Planned Parenthood of Pennsylvania v. Casey. This Article focuses on two common practices that cause these harms: criminalizing pregnant people and denying them medical decision-making authority. [...]