Judges, Jurors, and Punitive Damage Awards: Avoiding Over-Deterrence

Abstract: In most punitive damage award cases, in exchange for an added sense of legitimacy, the court entrusts the jury with interpreting the case’s facts, comprehending the judge’s instructions, and accurately applying the facts with the guidance of judicial instructions to arrive at the size of a punitive damage award. The jury, research reveals, often falls short on its end of the bargain. Because jurors often do not entirely comprehend jury instructions, jurors resort to cognitive biases that, inter alia, encourage awards substantial enough to create over-deterrence, a significant problem that forces corporations to take socially excessive precautions. Ideally, the over-deterrence created by the current design of jury instructions could be resolved by simply increasing jurors’ comprehension through the improvement of jury instructions. However, as this article will explore, the effectiveness of modifications to jury instructions is conditioned not only on jurors’ comprehension, but also on jurors’ adherence to the spirit of court procedures. The seemingly irresolvable shortcomings following from jurors’ cognitive biases direct this article to conclude that the solution to mitigating the effect of jurors’ cognitive biases on punitive damage awards is to redefine the roles of juries and judges in cases of punitive damages: juries should determine liability and judges should decide the size of an award.

Author: Alec Konstantin is a third-year at the University of California, Berkeley, majoring in Legal Studies.

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Autonomous Automobile Liability

Abstract: I argue that autonomous cars, by their nature, present an unusual case in product liability in the event of accidents, considering that vehicle collisions are traditionally considered strict liability cases in which drivers are responsible. I derive a “wheel or button” standard which holds that, in the cars of the future, in which we merely enter a destination on a touchscreen, liability for accidents should lay with the manufacturer.

Author: Evan Zimmerman is a third-year in the College, majoring in Economics, Mathematics, and Statistics.

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Equal Pay, Unequal Application: Equality Provisions in the ECJ and the Limitations of the Neo-Functionalist Model

Abstract: Few political institutions have attracted as much scholarly attention as the European Community (EC). What was originally conceived as a limited organization serving the economic interests of Member States has become a “quasi-constitutional federal entity” with vast jurisdiction over financial, social, and legal matters throughout the European Union. In the wake of these developments, neo-functionalist theorists have characterized European integration as a progressive move toward supranational rulemaking and governance. This paper challenges that characterization by arguing that EU Member States have in fact resisted integration. By integrating a historical approach to the women's rights movement in Europe with a theoretical analysis of the European legal system, I conclude that many countries have in fact been successful at limiting integration and maintaining local legal authority over rights. To more efficiently and equally promote supranational authority over rights, access to courts will have to be increased at the individual level, and advocacy and interest groups promoted.

Author: Cameron Langford is a fourth-year at Princeton University, majoring in Politics.

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State-Level Carbon Regulation and the Dormant Commerce Clause: the Use of the Public-Function Exemption

Abstract: In the vacuum of federal action on climate change, many states are taking the lead by implementing state and regional initiatives to curb greenhouse gas emissions. However, efforts to limit carbon emissions often require restrictions on certain carbon-intensive energy sources and can thereby impact energy markets and interstate commerce. As a result, state efforts face constitutional challenges under the dormant Commerce Clause as opponents argue that these policies are facially discriminatory and have an extraterritorial reach. To potentially alleviate this problem, Lawrence Fogel has suggested applying the public-function exemption to the field of carbon regulation, which would soften scrutiny of such regulation under the dormant Commerce Clause by regarding carbon regulation as a legitimate local function of state governments. So far, the public-function exemption has not been used in major court cases, such as Rocky Mountain v. Corey and North Dakota v. Swanson, to support the constitutionality of state-level carbon regulation. Nevertheless, there is still potential for the public-function exemption to be used to uphold state carbon regulation, especially as courts increasingly accept the role of states in experimenting with carbon regulation.

Author: Young-Eun (Amber) Kim graduated from Carleton College in 2014, with a B.A. in environmental studies.

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To Reduce the “Life of a Human Being to a Single Number”: Re-Examining IQ Testing for the Intellectually Disabled on Death Row

Abstract: In Hall v. Florida, the Florida Supreme Court sentenced an intellectually disabled capital offender to death because of his IQ score. Prior to the Supreme Court’s recent decision in the same case, states such as Florida maintained a fixed IQ threshold to determine intellectual disability, so if individuals did not score at or below this threshold, they would not qualify for exemption from the death penalty.

In its 2014 decision in Hall, the Supreme Court placed a limit on states’ previously unfettered discretion to use rigid IQ cutoff scores when making capital punishment decisions for intellectually disabled offenders. It ruled that a strict IQ cutoff score of 70 is “invalid under the Constitution’s Cruel and Unusual Punishments Clause” because IQ scores are imperfect estimates of intellectual functioning, and thus strict cutoffs should not preclude individuals with scores within “a band or zone of 65 to 75” from presenting alternate evidence that is relevant to intellectual disability considerations. However, even though the Court prohibited the strict bright line of 70, it did not prevent states from establishing IQ thresholds in the first place, even when they may be more flexible in range. Going forward, states can still mandate that individuals first meet a certain IQ requirement before any other evidence of an intellectual disability, such as “past performance, environment, and upbringing” is examined. Notably, even though the Court admited in Hall that IQ scores are “infallible approximations” of intellectual functioning, the Court still allows states to make IQ scores a priority in intellectual disability assessments.

I maintain that an IQ score alone does not capture—and for that matter, was never intended to capture—the multifaceted and complex nature of an intellectual disability. Therefore, states need to look beyond the IQ score when diagnosing intellectual disabilities, especially when something as sacrosanct as a human life is at stake. If states want to employ the death penalty justly , they must stop relying on proxies such as IQ scores to make intellectual disability determinations. Instead, states should examine multiple sources of evidence, such as testimony from those who personally know the individual or testimony from the disability community regarding intellectual disability, to determine if someone is mentally disabled. If there is any doubt at the end of investigations as to an individual’s intellectual disability status, states should veer on the side of caution and avoid the death penalty completely."

Author: Sydney Mendelsohn is a third-year at Cornell University.

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Appearance Discrimination, Title VII, and the BFOQ: A Cross-Circuit Analysis of Sexually Discriminatory Appearance Policies

Abstract: In order to determine Title VII’s capacity to fight appearance discrimination in the workplace, this study examines a cross-circuit split that highlights the present indeterminacy of modern sex discrimination law. In one case, a plaintiff alleging a claim of workplace gender discrimination prevailed on her claims—as a result of the Eighth Circuit's decision in Lewis v. Heartland Inns of America, 591 F. 3d 1033 (8th Cir. 2010). Yet, in a second case, a different circuit rejected the nearly identical claims of a similar plaintiff—see the Ninth Circuit’s opinion in Jespersen v. Harrah’s Operating Co., 444 F. 3d 1104 (9th Cir. 2006) (en banc).

Part I of this article establishes the background of both cases and the relevant precedents upon which they relied. In Part II, I outline the existing literature on appearance discrimination, Title VII, and an integral exception to Title VII: the bona fide occupational qualification (BFOQ). I then provide a brief description of my methodology in Part III, followed by a cross-circuit analysis of the Jesperson and Lewis opinions in Part IV. Finally, in Part V, I explore the implications of this study for appearance discrimination litigation, discuss the need for greater guidance from the Supreme Court and Congress, and suggest avenues for further research.

Author: Emily Vernon is a fourth-year at Northwestern University, majoring in American Studies and Legal Studies and minoring in Chinese.

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