Charles A. Sullivan

Legal Regulation of the Use of Race in Medical Research

In this article, we discuss current legal restrictions governing the use of race in medical research. In particular, we focus on whether the use of race in various types of research is presently permitted under federal law and the federal constitution. We also discuss whether federal restrictions on the use of race in research ought to be expanded, and whether federal policies that encourage the use of race ought to be abandoned.

Tending the Garden: Restricting Competition via 'Garden Leave'

American employers have rarely paid for the noncompetition agreements they require of many employees, at least if “payment” is defined as anything above normal compensation. That is clearly changing – at least in some sectors of the economy and for at least some employees. A version of the common English practice of offering “garden leave” has been adopted by many firms in the financial services industry for higher-value workers, and it is spreading to other sectors. Garden leave is essentially a paid sit-out restriction, and while well-established in England, there is relatively little law on such provisions in the United States. To complicate matters, American firms have typically departed from the defining characteristics in England so that even the predicates of garden leave there are not necessarily applicable here. Most importantly, while English firms generally retain workers as employees during “garden leave,” thus looking to the employee duty of loyalty as a justification for the restraint on competition during this period, American employers generally use garden leave as a postemployment device, require employees terminated, whether or not voluntarily, to refrain from competition during a restricted period.One inquiry, therefore, is simply how well American garden leave fits within the normal doctrinal analysis for noncompetition agreements. This embraces the question of whether such provisions may be used to end-run judicial limitations on postemployment restraints. It also raises issues about the respective rights and duties of the employer and former employee during the period of garden leave.Finally, of course, garden leave provisions raise in stark relief the long-submerged tension between the two interests that have traditionally been raised in opposition to the employer’s interest in restraining competition. Thus, such provisions reduce the costs to employees and may tend towards narrower and shorter restraints, precisely because the employer now has “skin in the game”; this clearly mitigates, if not eliminates, concerns about undue hardship. Nevertheless, the public interest in free competition continues unabated; indeed garden leave would seem to exacerbate the effects of postemployment restraints in that regard.

Tortifying Employment Discrimination

Although Title VII is often described as a “statutory tort,” that label has, until recently, been mostly metaphorical. In Staub v. Proctor Hospital Corp., however, the Supreme Court took an important first step in incorporating concepts from tort law into the antidiscrimination statutes. Although Staub received some attention as a “cat’s paw” (or subordinate bias) liability decision, it will have broader significance for two reasons. First, the Court explicitly adopted tort law’s definition of “intent” for statutory discrimination cases, thus raising a threshold question of the what it means to “intend to discriminate.” This Article suggests that, rather than widening the notion of discriminatory intent, which Staub at first blush seems to do, the opinion actually adds another layer to the plaintiff’s burden – for liability, the decision-maker must now both have the requisite wrongful motivation and either desire a resulting “adverse employment action” or believe that such an action is substantially certain to occur. Second, and perhaps more important, Staub for the first time imported the concept of proximate cause into the antidiscrimination context from its usual home in negligence law. Such a transplant is especially remarkable because proximate cause was unnecessary for resolving the case before the Court. The only purpose of adding a proximate cause requirement is to limit liability short of the full reach of but-for causation, and limiting employer liability tracks what the Court has done in other areas of federal statutory law. In those areas, the Court has not only applied proximate cause to intentional conduct (a phenomenon largely foreign to tort law from which the Court is theoretically borrowing) but has also adopted a more rigorous view of what proximate cause requires. Rather than looking only to the foreseeability of the plaintiff or the harm, which is the majority approach in the negligence arena, the Court has articulated a policy-driven perspective that allows it to restrict liability in the name of applying traditional tort doctrine. After exploring these issues, the Article argues that Staub’s deployment of proximate cause in the discrimination area may have been intended to set the stage for a later effort to narrow the reach of Title VII and the other discrimination statutes by finding that “cognitive bias” does not proximately cause a resulting adverse employment action. While there is a spirited debate about whether Title VII bars adverse employment actions resulting from such bias, Staub may have set the stage for resolving that controversy by marking the path for a holding that only conscious bias can proximately cause an adverse employment action.

Consent Decree Settlements by Administrative Agencies in Antitrust and Employment Discrimination: Optimizing Public and Private Interests

The use of consent decrees to resolve government litigation in a variety of contexts, but especially in the antirust and employment discrimination arenas, has raised questions both about the extent to which the relevant agencies are properly pursuing enforcement goals and the intersection of such decrees with private rights to sue under the governing statutes. This article explores the settlement process – free of complications of applying intricate substantive law to involved factual situations – in an effort to construct a general theory of the settlement process in terms of its aims and methods for ensuring that those aims are in fact pursued by enforcement agencies. The recommendations made are twofold, some aimed at agencies in the first instance and some directed to courts asked to enter a consent decree. First, we argue for procedures that enable all relevant interests to be taken into account in the formulation and approval of a proposed decree. Second, we propose a number of substantive principles that should be applied by agencies agreeing to consent decrees. These include: (1) the relief obtained should do more than parrot the provisions of the governing statute; (2) any settlement should not adversely affect relevant third parties; (3) even absent adverse effect, a settlement that fails to advance relevant third party interests under the governing statute must consider the ability of such third parties to protect themselves.