Volume 37, Issue 2

The Effects of Comparable‐Case Guidance on Awards for Pain and Suffering and Punitive Damages: Evidence from a Randomized Controlled Trial

Hillel J. Bavli & Reagan Mozer

Damage awards for pain and suffering and punitive damages are notoriously unpredictable. Courts provide minimal, if any, guidance to jurors determining these awards, and apply similarly minimal standards in reviewing them. Lawmakers have enacted crude measures, such as damage caps, aimed at curbing award unpredictability, while ignoring less drastic alternatives that involve guiding jurors with information regarding damage awards in comparable cases (“comparable‐case guidance” or “prior‐award information”). The primary objections to the latter approach are based on the argument that, because prior‐award information uses information regarding awards in distinct cases, it introduces the possibility of biasing the award, or distorting the award size, even if prioraward information reduces the variability of awards. This paper responds to these objections. It reports and interprets the results of a large randomized controlled trial designed to test juror behavior in response to prior‐award information and, specifically, to examine the effects of prioraward information on both variability and bias under a range of conditions related to the foregoing objections.

Childcare, Vulnerability, and Resilience

Meredith Johnson Harbach

The question of how to provide care for America’s youngest children, and the quality of that care, is among the most vexed for family law. Despite seismic demographic shifts in work and family, childcare law and policy in the United States still operates on the assumption that childcare is the private responsibility of parents and families rather than a state concern. But this private childcare model, based on unrealistic assumptions in liberal theory and buttressed by an ascendant neoliberalism, is inadequate to today’s childcare challenges. This project confronts the inadequacies of the private childcare model. Using Martha Albertson Fineman’s Vulnerability Theory as its frame, this Article argues that the state’s role with regard to childcare should be primary, rather than supplemental or contingent. Recognizing the universal vulnerability of children and families and the potential for high quality care to promote resilience, the state has an obligation to provide the care and support necessary to ensure child wellbeing.

Tax Reform, Mixed‐Entity Markets, and Hospitals: How the 2017 Tax Cuts and Jobs Act Favors the For‐Profit Hospital Model

Elizabeth King

When the U.S. Congress passed the Tax Cuts and Jobs Act in 2017 (the “TCJA”), it achieved a significant tax cut for corporations. In doing so, however, Congress simultaneously reshaped the landscape for mixedentity markets—that is, industries like healthcare and education in which nonprofit, for‐profit, and government entities coexist and compete. This is particularly true for the hospital market in which the TCJA’s provisions have subtly but decidedly tilted market conditions towards a for‐profit hospital model.
 

Transgender Tropes & Constitutional Review

Jennifer L. Levi & Kevin M. Barry

The Trump administration is aggressively and systematically rolling back policies that protect transgender people. History teaches that these governmental attacks are not new, but instead represent the latest salvo in a long but losing battle to disparage transgender people, who have been ruthlessly depicted as criminals, deviants, and selfish iconoclasts. Notwithstanding the current administration’s open hostility toward transgender people, constitutional protections endure. This Essay discusses the evolution of government discrimination against transgender people—from laws that criminalized the violation of gender norms in the late twentieth century to the present‐day exclusion of transgender people from the U.S. military—and transgender people’s continued efforts to secure recognition of their rights under the Fourteenth Amendment.
 

Code Dodgers: Landlord Use of LLCs and Housing Code Enforcement

James Horner

In depressed real estate markets across the United States, landlords are placing each of their properties in separate LLCs. Their aim in doing so is to avoid the full brunt of housing code enforcement by limiting their exposure to potential fines. The increasing prevalence of single‐property LLCs has significant, negative consequences for lowincome tenants. First, their buildings are less likely to be well maintained. Additionally, in certain circumstances, a single‐property LLC strategy enables landlords to use superior bargaining power to extract enormous profits from tenants in dilapidated properties. Then, when the property accumulates too many fines, landlords can simply walk away from the buildings. This, in turn, increases blight and reduces the affordable housing stock in a city. Current legal schemes—such as typical housing codes, criminal penalties, and consumer protections—do not adequately address this problem. Instead, this Note recommends that local governments pursue a policy of limited corporate veil piercing for landlords based on ERISA’s common control liability provisions.

Deadlines in Civil Litigation: Toward a More Equitable Framework for Granting Extensions

James Mooney

This Note proposes reforms to federal rules of procedure governing deadline extensions in civil litigation. Civil Rule 6(b)(1)(B), a representative example, allows deadline enlargements after a party files a document late, provided that the litigant “failed to act because of excusable neglect.” Unfortunately, courts interpret “excusable neglect” inconsistently and some circuits construe it narrowly. This allows judges to dismiss meritorious cases and bar appeals even when extending deadlines would not prejudice other parties or harm the proceedings. A more equitable framework would channel judicial discretion and encourage courts to resolve cases on the merits rather than on missed due dates.