Volume 72, Number 4

October 1997

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.

Controlling Corporate Misconduct: An Analysis of Corporate Liability Regimes

Jennifer Arlen, Reinier Kraakman

Corporations have historically been held to a standard of strict vicarious liability for the wrongdoing of their employees. However, several areas of federal and state law have shifted to new duty-based schemes that mitigate liability for companies that have implemented compliance programs or reported wrongdoing to the government. Some states even grant privilege to environmental audit reports.

Professors Arlen and Kraakman compare the norm of vicarious liability with various types of duty-based liability regimes, analyzing the benefits and costs of each approach. They conclude that social welfare is maximized by a mixed regime that includes elements of both strict and duty-based liability. The authors find that the mixed liability regime with the widest application is a composite regime, which imposes high penalties subject to mitigation for firms that engage in compliance activities. Under this regime, firms that satisfy all enforcement duties would nonetheless face substantial residual liability equal to the harm caused by wrongdoing divided by its probability of detection. They then examine the existing composite liability regimes embodied in the United States Sentencing Guidelines for corporate defendants and the evidentiary privileges that many states have adopted for companies’ environmental audit reports. They conclude that both current approaches are flawed, as they do not adequately create proper incentives for companies to monitor, investigate, and report employee wrongdoing.

Book Reviews

The Turn to History

Barry Friedman

Laura Kalman’s The Strange Career of Legal Liberalism is a rollicking romp through a half-century of law and legal scholarship. Suggesting that law professors read the book is something akin to asking playwrights to read their latest reviews. Kalman, a law-trained historian, tells us there was a time when she read law review articles to ease her to sleep, a strategy that failed her once the articles had “become too interesting.” Kalman’s subjects, legal scholars, are likely to find her book equally engrossing, and for reasons that reach far beyond membership in a mutual admiration society.


Borders (En)Gendered: Normativities, Latinas, and a LatCrit Paradigm

Berta Esperanza Hernandez-Truyol

This Essay, developed in a prologue and three parts, adopts Latinas'/os' world traveling as a metaphor for Latina/o multidimensionality and as a springboard for LatCrit theorizing. The Prologue is a brief diary entry of un fin de semana viajando mundos–a weekend of actual traveling between New York and Miami; law and familia; profesora and learner; colleague and hija; espanol and English; norte y sur; normativa and other; indigenous and alien. This abbreviated record of a Latina's life reveals, exposes, and unveils Latinas'/os' daily crossdressing simply by virtue of their latinidad. The Essay explores two sets of relationships vis-a-vis their significance to and impact on the development of LatCrit theory.


The Danger of Winning: Contract Law Ramifications of Successful Bailey Challenges for Plea-Convicted Defendants

Ty Alper

The Supreme Court, in Bailey v. United States, ruled unanimously that in order to convict a defendant of “use” of a firearm during the commission of a drug trafficking offense pursuant to 18 U.S.C. ยง 924(c)(1), the government must show that the defendant “active[ly] employ[ed]” the firearm, not merely that the firearm was an “inert presence” at the scene of the offense. Several district courts confronted with post-Bailey habeas petitions have provided defendants with Pyrrhic victories: These courts have granted the habeas petition but then deemed this collateral success a material breach of the plea agreement and allowed the government to reindict the defendant on the charges it had dismissed previously.

This Note argues that a successful collateral attack is neither a breach of a defendant’s plea agreement with the government nor an act which requires rescission of the agreement due to impracticability. Rather, the successful collateral attack may have created a situation in which the purpose of the contract has been substantially frustrated for the government. The Note evaluates a government claim premised upon this notion, but concludes that the government is still not entitled to relief.