Samuel Issacharoff


Is Age Discrimination Really Age Discrimination?: The ADEA’s Unnatural Solution

Samuel Issacharoff, Erica Worth Harris

Through a series of reforms over the last two decades, the Age Discrimination in Employment Act (ADEA) has become the most far-reaching of the antidiscrimination statutes. In this Article, Professor Issacharoff and Ms. Harris provide a critical reexamination of both the ADEA itself and, more generally, the use of antidiscrimination law to address the problem of aging in employment. The authors distinguish the disadvantages that older employees face from classic claims of employment discrimination, noting the inapplicability of the antidiscrimination model underlying the ADEA to some of the problems associated with aging in employment. The authors then turn to the development of the ADEA and its amendments, examining the role of regulatory capture in the expansion of ADEA protections. They conclude that the broad use of antidiscrimination law to address the problem of aging in employment without accounting for the differences between classic claims of discrimination and the particular problems faced by older employees has resulted in a dramatic and unjustified shift in wealth toward older Americans. Accordingly, they propose a series of reforms designed to address both the specific problems faced by older employees and the reallocation of wealth imposed by recent ADEA amendments.

Targeted Warfare: Individuating Enemy Responsibility

Samuel Issacharoff, Richard H. Pildes

Legitimacy of the use of military force is undergoing a fundamental but insufficiently appreciated moral and legal transformation. Whereas the traditional practices and laws of war defined enemy forces in terms of categorical, group-based judgments that turned on status—a person was an enemy not because of any specific actions he himself engaged in but because he was a member of an opposing military force—we are now moving to a world that, implicitly or explicitly, requires the individuation of enemy responsibility of enemy persons in order to justify the use of military force. Increasingly, the legitimate use of military force is tied to quasi-adjudicative judgments about the individual acts and roles of specific enemy figures; this is the case whether the use of force involved is military detention or targeted killing. This transformation transcends conventional debates about whether terrorist actions should be treated as acts of war or crime and is more profound in its implications.

This readjustment in the basic premises underlying the justified use of military force will have, and is already having, implications for all the institutions involved in the use of military force and in the processes by which decisions are made to use force. For the military, this change will generate pressures to create internal, quasi-adjudicative processes to ensure accurate, credible judgments about the individual responsibility of particular enemy fighters. For the executive, these changes will propel greater engagement in decisions that had previously been exclusively within the province of the military. For the courts, this transformation toward individuated judgments of responsibility will inevitably bring about a greater judicial role in assessing wartime judgments than in the past; this expansion has begun to occur already. These changes are not yet directly reflected (or at least fully reflected) in the formal laws of war, but we anticipate that as these changes embed themselves in the practices of states, especially dominant states, these changes in practice will also eventually be embodied in the legal frameworks that regulate the use of force. This Article will identify this fundamental transformation as the central factor driving struggles over the proper boundaries of military force and then explore the ramifications of this change for issues like military detention and targeted killings.

The Participatory Class Action

Elizabeth J. Cabraser, Samuel Issacharoff

The class action has emerged as the settlement instrument of choice in mass harm cases such as the Volkswagen emissions scandal or the Deepwater Horizon aftermath. But the class action has also reemerged in the mass tort context, most notably in the NFL Concussion litigation. After seemingly collapsing following the Amchem and Ortiz Supreme Court decisions of the 1990s, the class action device is getting an important second life in courts today.

This Article argues that the new class action has a feature that should increase its doctrinal acceptability: forms of active class member participation. What we term the “participatory class action” emerges from two developments. The first is the technological transformation in the means of communication with class members, and among the class members themselves. The second is that the current class action almost invariably arises from the initial aggregation and centralization of large numbers of individual suits and putative class actions in the Multidistrict Litigation (MDL) process. As a result, classes are comprised not simply of lawyers and absent class members, but of hundreds or even thousands of individual claims, with individuals capable of monitoring the class and represented by independent counsel.

With over forty percent of the actively litigated civil cases in federal courts now in the MDL dockets, the transformation in mass resolution is well underway. In these new consolidations, the assumptions of older law about absent class member passivity break down. In the popular typology in academic examination of class actions, class action law should insist on the loyalty of agents and the importance of individual ability to exit as guarantors of systemic legitimacy. In the participatory class action, voice emerges as a critical element, with the capacity of the normally silent class members to assert their interests and their views. As with the need for class action law to move from first-class mail to Twitter, so too must the law embrace the implications of real participation by those represented in the assessment of representational propriety.

The Difficult Path from Observation to Prescription

Samuel Issacharoff

While the law of the American workplace presumes that the market for employment operates as formal economic theory would predict, it would be difficult to find an area of law where the governing conceptual model is at such disjuncture from the law as applied. Professor Samuel Issacharoff argues that behavioral law and economics is the latest model that attempts to explain this disjuncture. However, he provides two cautions to the application of this model. First, he notes that the empirical observations that this model offers are amenable to conflicting interpretations and thus possess a limited ability to offer reliable generalizations. Additionally, he explains that even if the empirical foundations were solidified, empiricism itself does not generate normative conclusions.