Showing papers in "University of Pittsburgh Law Review in 2000"

Why Markets Crash and What Law Can Do About It

Abstract: 1 I define a market “crash” as a sudden and widespread downward movement in asset prices. I am primarily concerned with financial assets, although the analysis here should apply more generally to real assets including goods and services. Financial assets present the problem of market crashes in its starkest form: economists cite financial asset markets as examples of perfect competition, yet such markets are highly regulated; economists call these markets close to perfect, yet they generate widespread mania and panic. See, e.g., R.H. COASE, THE F IRM, THE MARKET, AND THE LAW 9 (1990) (concluding that in financial markets “for anything approaching perfect competition to exist, an intricate system of rules and regulations would normally be needed”). Oddly, regulators shy from the perjorative “crash,” referring instead to market “breaks.” See, e.g., In re Application of James D. Oberweis, Admin. Proc. File No. 3-7532, Exchange Act Release No. 31213, 1992 SEC LEXIS 2411, at *2 (Sept. 22, 1962) (referring to “market break” of October 1987); Statistical Series, Release No. 1953, 1964 SEC LEXIS 2260, at *3 (Jan. 28, 1964) (referring to “market break” of May 1962); In re T.I.S. Management Corp., Securities Act Release No. 1689, 1938 SEC LEXIS 427, at *7 (Feb. 25, 1938) (referring to “market break” of October 1929). I will use the term “crises” to refer to the aftermath of a crash.

Balancing Public Health Against Individual Liberty: The Ethics of Smoking Regulations

Abstract: Ten years ago, philosopher Robert E. Goodin published "No Smoking: The Ethical Issues." Goodin argued that the liberty of smokers can be justifiably limited for two reasons: to prevent harm to third persons and to prevent harm to smokers themselves under circumstances which make their decision to smoke substantially non-autonomous. In this article Thaddeus Pope reexamines the harm principle and the soft paternalism principle in light of more recent legal developments, gives them additional content, and carefully demarcates the justificatory scope of each. Pope also defines and defends a third liberty-limiting principle, hard paternalism, arguing that the liberty of smokers might be justifiably limited even when their decision to smoke is substantially autonomous.

The First Bite Is Free: Employer Liability for Sexual Harassment

Abstract: In June, 1998, the Supreme Court issued two decisions, Burlington Industries, Inc v Ellerth and Faragher v City of Boca Raton that established new standards for employer liability for sexual harassment Although the two cases presented different questions and factual predicates, the Court adopted a unified holding with respect to employer liability for supervisor harassment Many commentators interpreted the new standards as a blow to employers based on the perception that employers would now be held accountable for workplace harassment without regard to their culpabilityThe thesis of this article is that the conventional wisdom with respect to Faragher and Ellerth is dead wrong Those decisions, far from imposing additional liability on innocent employers, have instead created a virtual safe harbor that protects employers from liability unless their own conduct is found wanting This protection for employers comes at a high price, depriving some victims of actionable sexual harassment of legal redressPart I of this article outlines the new standards for employer liability for supervisory harassment and their doctrinal underpinnings The Court in Faragher and Ellerth noted that negligence provides a minimum standard of liability for harassment by any employee, but concluded that in addition employers can be held vicariously liable for supervisor harassment based on the agency principle that holds masters liable for the actions of their servants when those servants are aided by the agency relation Because supervisors who harass their subordinates meet that test, agency principles justify holding employers vicariously liable for the harassmentHowever, the Court fell short of a pure rule of strict vicarious liability by providing employers with an affirmative defense in cases where the supervisor did not take any tangible employment action against the victim (namely, hostile environment cases) An employer who can prove the affirmative defense can reduce its damages or escape liability altogetherPart II of the article revisits these new standards as applied to a series of hypothetical cases and demonstrates that the standards of liability are far more indulgent to employers than an abstract discussion suggests The effective standard of employer liability turns primarily on the construction of the affirmative defense If the affirmative defense affects only the remedies available, then the standard adopted more closely approximates strict liability: the employer's after-the-fact efforts to stop the harassment and the victim's failure to complain do not negate liability, but instead mitigate damages If, however, the affirmative defense negates liability even for the prior acts, then the effective standard becomes far more lenient to employers-hence, the first free bite Parts III critiques the new standards in theory and in practice: the Supreme Court would have the affirmative defense sometimes affect damages and liability; however, this part argues that the affirmative defense should never affect liability, but only damagesFinally, Part IV critques the Court for ignoring the many instances in civil rights law where mitigating factors have not been permitted to affect the threshold finding of liability This part proposes a legislative correction to the problem created by Faragher and Ellerth, one which strikes a reasonable compromise between the competing interests of employers and victims while remaining faithful to the underlying goals of Title VII

Oregon's guidelines for physician-assisted suicide: a legal and ethical analysis.

Abstract: Oregon's Death with Dignity Act was first passed by a ballot initiative in 1994, but numerous judicial challenges delayed implementation of the Act. In November of 1997, following the United States Supreme Court decisions in Vacco v. Quill and Washington v. Glucksberg, which left the states' power to regulate physician-assisted suicide undisturbed, the Oregon voters upheld their law. Oregon remains the only state in the nation to authorize physician-assisted suicide. The Task Force to Improve the Care of Terminally Ill Oregonians published a Guidebook for health care providers on the Oregon Act, and the New England Journal of Medicine recently issued a special report on the first year's experience under the Act. This paper analyzes the legal context of the Oregon Death with Dignity Act, discusses the efficacy of the tenets in the Guidebook, and explores ethical issues underlying the guidelines, particularly those pertaining to the meaning of a patient's request for assisted suicide and processes supporting informed consent.