Emory Law Journal

Volume 67Issue 1

Price Transparency and Incomplete Contracts in Health Care

Wendy Netter Epstein | 67 Emory L.J. 1 (2017)

Market-based health care reform solutions, which have grown in popularity and possibility, suggest when patients act more like consumers, health care prices will decrease and unnecessary medical procedures will occur less frequently. This Article argues that these benefits of a market-based health care system cannot occur without price transparency in health care contracts. Through synthesizing theories of law and economics and behavioral science, this Article proposes that contract theory provides the most desirable solution: courts enforcing a penalty default of $0 when health care contracts do not provide a price and it would be reasonable to do so.

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Constructing Recidivism Risk

Jessica M. Eaglin | 67 Emory L.J. 59 (2017)

Courts are increasingly relying on statistically derived information to determine a defendant’s likelihood of recidivism at sentencing. Tools that provide the courts with the actuarial data are helpful to making sentencing decisions, but their use also raises concerns about the choices developers make in construction. This Article argues that there must be more accountability during the tool development process because the design decisions require normative judgments about accuracy, equality, and purpose of punishment. Furthermore, this Article emphasizes that actuarial tools should be designed to reflect the societal values about the administration of justice.

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Insider Trading: The Problem with the SEC’s In-House ALJS

Lucille Gauthier | 67 Emory L.J. 123 (2017)

Negative publicity surrounding SEC administrative law judges (ALJs) have brought their credibility into question. Concerns about the ALJs have been furthered by the SEC’s increased use of administrative proceedings and its success rate in those proceedings. This Comment looks to the possible sources of bias and evaluates the most prominent proposals to reduce bias. This Comment concludes that these proposals are inadequate and instead proposes a new solution: restructuring the system of how ALJs are selected into a neutral pool of judges who would be assigned randomly to different federal agencies.

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Tragedy of the Commonality: A Substantive Right to Collective Action in Employment Disputes

Spencer Stephens | 67 Emory L.J. 157 (2017)

The apparent conflict between the National Labor Relations Act (NLRA), which protects employees’ ability to overcome oppressive employment collectively, and the Federal Arbitration Act (FAA), which provides for judicial facilitation of arbitration disputes, has led the Supreme Court to take a negative position on invalidating arbitration agreements, even when those agreements restrict the substantive rights of employees. This Comment argues that the NLRA and FAA do not conflict and the Supreme Court should adopt the effective vindication exception to invalidate individual arbitration agreements that prohibit employees from utilizing collective action in an employment dispute.

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