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Volume 66, Issue 3
“Dependent Contractors” in the Gig Economy: A Comparative Approach

By Miriam A. Cherry and Antonio Aloisi | 66 Am. U. L. Rev. 635 (2017) 

In recent years, lawsuits alleging the misclassification of workers as “independent contractors” rather than “employees” have become widespread in the United States.  Determining employee status is important because such status is a gateway to many substantive legal rights.  In response, some commentators have proposed an in-between hybrid category just for the gig economy. However, such an intermediate category is not new. In fact, it has existed in many countries for decades, producing successful results in some and misadventure in others. We use a comparative approach to analyze the experiences of Canada, Italy, and Spain with the intermediate category. In Italy, the quasi-subordinate category created an opportunity for arbitrage that resulted in less worker protection. The end result was confusion, and since 2015, the third category’s use has been extremely limited. Spain’s third category, the TRADE, was only made available to a small percentage of self-employed workers because of the burdensome nature of its regulations and the high dependency threshold required for inclusion. As for Canada, the practical result of the “dependent contractor” category was to expand the definition of employee and to bring more workers under the ambit of labor law protection. We ultimately conclude that workable proposals for a third category must also encompass other forms of precarious employment.  Working within the existing framework, one solution would be to change the default presumptions regarding the two categories that already exist. Above a minimum threshold of hours worked or income earned, the default rule would be an employment relationship for most gig workers except those that may fit into a “safe harbor” for de minimis amateurs or volunteers.

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A Different Class of Care: The Benefits Crisis and Low-Wage Workers

By Trina Jones | 66 Am. U. L. Rev. 691 (2017)

When compared to other developed nations, the United States fares poorly with regard to benefits for workers.  While the situation is grim for most U.S. workers, it is worse for low-wage workers.  Data show a significant benefits gap between low-wage and high-wage in terms of flexible work arrangements (FWAs), paid leave, pensions, and employer-sponsored health-care insurance, among other things.  This gap exists notwithstanding the fact that FWAs and employment benefits produce positive returns for employees, employers, and society in general.  Despite these returns, this Article contends that employers will be loath to extend FWAs and greater employment benefits to low-wage workers due to (1) concerns about costs, (2) a surplus of low-wage workers in the labor market, (3) negative perceptions of the skill of low-wage workers and the value of low-wage work, (4) other class-based stereotypes and biases, and (5) structural impediments in some low-wage jobs.  Given the decline of unions and limited legislative action to date, the Article maintains that low-wage workers are in a “different class of care” with little hope for meaningful change on the horizon.

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The Weaponized Lawsuit Against the Media: Litigation Funding as a New Threat to Journalism

By Lili Levi66 Am. U. L. Rev. 761 (2017) 

This Article identifies a new front in the current war against the media—one in which billionaire private actors clandestinely fund other people’s lawsuits in an attempt to censor press entities. The use of strategic litigation to shutter media outlets constitutes a major threat to the expressive order.  And the current climate of press failures, institutional disaggregation, decreasing accountability journalism, and declining public trust—the very vulnerability of the press today—significantly amplifies the chilling impact of strategic third-party funding.  It does so whether the strategy is death-by-a-thousand-litigations or titanic, bankruptcy-inducing damage verdicts.

Still, contrary to the assertions of both funders and their opponents, finding an appropriate response to these developments is far from easy under current law.  It is neither realistic nor constitutionally palatable to prohibit third-party funding in media cases.  Such funding can play a valuable role by ensuring that even penurious individuals can vindicate viable claims against media organizations.  Yet existing champerty and maintenance jurisprudence cannot adequately address the problem.  A richer, more multivalent approach is called for.  In that spirit, this Article proposes a realistic four-pronged strategy:  (1) judicial discretion to order disclosure of third-party funding in discovery;  (2) waiver or reduction of appeal bonds in third-party-funded media cases where such bonds would effectively make verdicts against the media unappealable; (3) development of counter-funding strategies and support of third-party-funding watchdogs; and (4) consideration of a litigation misuse claim against third-party funders in cases where their support is designed to shutter press outlets.

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The Investment-Related Aspects of Intellectual Property Rights

By Peter K. Yu | 66 Am. U. L. Rev. 829 (2017)

This Article critically examines the investment-related aspects of intellectual property rights with a focus on the use of investor-state dispute settlement (ISDS) to address international disputes involving intellectual property investments. It begins by exploring the growing trend of using investment law and fora to set international intellectual property norms. It also closely evaluates the strengths and weaknesses of the ISDS mechanism. This Article then examines the various upgrades that the Trans-Pacific Partnership (TPP) Agreement has provided to the ISDS mechanism. It further outlines the conceptual and institutional improvements that could make ISDS even better than the mechanism provided in the TPP Agreement. This Article concludes by exploring whether the TPP ISDS mechanism has provided any silver linings if it is adopted without modification.

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COMMENT: Using Data Exclusivity Grants to Incentivize Cumulative Innovation of Biologics’ Manufacturing Processes

By Eric Lawrence Levi | 66 Am. U. L. Rev. 911 (2017)

The pharmaceutical market is divided into two types of compounds: small-molecule chemical compounds and large-molecule biologics. Due to biologics’ molecular sizes and the current scientific state of biologics manufacturing, manufacturing facilities and processes require frequent reassessment to ensure production of safe, pure, and potent therapeutics. Manufacturers utilize patent and drug regulatory law to protect their investments and simultaneously signal where innovation and investment are lacking. The current four- and twelve-year regimented structures of the Biologics Price, Competition, and Innovation Act do not keep pace with scientific development; biologics manufacturing processes drift with time, and if a manufacturer can obtain a higher degree of process control, then it should not feel restricted to wait until their exclusivity period lapses. Currently, the FDA rarely grants market exclusivity privileges for manufacturing process improvements alone; hence, manufacturing processes—or at least large portions thereof—are typically withheld as trade secrets or strategically claimed within companion composition claims. As a result, significant opportunity exists in regulatory framework to incentivize the research and development of biologics manufacturing processes. By creating a one- to four-year data exclusivity extension opportunity, manufacturers will feel more comfortable reinvesting their returns on investment towards manufacturing efficiency, and manufacturers can capitalize on the complex-molecule nature of their biologic.

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COMMENT: Cloudy with a Chance of Abused Privacy Rights: Modifying Third-Party Fourth Amendment Standing Doctrine Post-Spokeo

By Sarah E. Pugh | 66 Am. U. L. Rev. 971 (2017)

 The Stored Communications Act (SCA) provides various privacy protections for electronic communications; however, the statute has failed to keep up with technological advances, and the application of third-party Fourth Amendment standing doctrine has whittled away privacy protections.  Microsoft is bringing a Fourth Amendment challenge to sections 2703 and 2705 of the SCA, which—when used in combination—permit the government to use “no-notice warrants” and secrecy orders to access a cloud user’s communications and data from the electronic communications provider without the cloud user’s knowledge.

The greater problem is that these actions may go unchallenged in court.  As the U.S. Supreme Court’s standing jurisprudence currently provides, Fourth Amendment rights may not be raised vicariously.  However, where Microsoft’s cloud customers are entirely unaware that a search has taken place, they lack the knowledge to bring a claim and assert their own rights.  Moreover, there is the secondary problem of establishing whether Microsoft’s customers have suffered a sufficient harm from this invasion of privacy by the government.  New case law suggests that the improper sharing of personal information might not satisfy the “injury in fact” requirement for standing.  If the Court extends this case to the Fourth Amendment and requires evidence that the search had a concrete negative impact, Microsoft’s customers may not have suffered a legally cognizable harm.

This Comment advocates adopting a modified and relaxed third-party standing doctrine to permit electronic communications service providers to defend their customers’ privacy interests and raise Fourth Amendment claims on their behalf where they are unable to do so themselves.  This approach would also require the court to expressly identify an improper search and seizure of electronic communications and data as a sufficient “injury in fact” to confer standing, minimizing the impact of Spokeo, Inc. v. Robins.

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