Affirmative Defense Research Articles

Restructuring Lebanese Sovereign Debt: Tackling the Holdout Problem

Lebanon can threaten to take the following three actions to restructure its debt and weaken the position of a potential holdout creditor, such as the Ashmore Group, that holds more than 25% of the outstanding debt. First, unilaterally amend the terms of the Fiscal Agency Agreement pursuant to Para. 23.1 to allow bondholders representing a simple majority of the outstanding debt to amend non-core terms, contrary to the 75% required to pass an extraordinary resolution. Second, initiate the debt restructuring through a debt exchange program with an exit consent that requires participating bondholders to vote to amend the two non-core terms in the Fiscal Agency Agreement: (1) amend the forum selection clause to ensure that in the event of default, the creditor may only bring a lawsuit against the debtor in a Lebanese court (para. 8.3); (2) remove the pari passu clause (para. 3). Third, the Lebanese Parliament enacts a law effectively accomplishing that (1) the New bonds are senior to the Old Bonds; (2) the government may make selective payments on its senior debt until they are paid in full without resulting in default on junior claims; (3) successful creditor-litigants have the obligation to apply the proceeds of a successful judgment against Lebanon to senior creditors. In the event that Lebanon fails in these three actions, Lebanon can still rely on the necessity doctrine as an affirmative defense.

Justifications, Excuses, and Affirmative Defenses

Abstract A defendant who admits to having committed an offense may nevertheless be acquitted if he can provide a legally cognizable justification or excuse for his actions by raising an affirmative defense. This article explains how affirmative defenses generate social benefits in the form of avoided unnecessary punishment. It then asks what kind of evidentiary standards must be used in order to balance these benefits against potential social costs arising from frivolous defense claims. It thereby provides an economic rationale for the uniformity across US jurisdictions in allocating the burden on the prosecution to prove the commission of the offense, as well as the variation across states in the standards of proof they use in determining the validity of affirmative defenses. The analysis also explains why mere assertions of undeterrability should not be considered as affirmative defenses. (JEL K00, K14, K40, K41, K42)

Deciding Fair Use

An often-overlooked question is who should decide the important questions of the day. This Article takes up the inquiry as it relates to copyright fair use. Conceptually, fair use is a public policy question. The better policy view is that fair use is a statutory right, a speech-protective safeguard, and a defense — but not an affirmative defense. Operationally, who decides fair use is a judicial policy question. Who decides a particular question is informed by the nature of the question. Courts are arbiters of law, and juries are arbiters of facts. For a mixed question of law and fact, who decides is driven by whether the question is more fact-like or more law-like. Categorizing such questions is, at its core, an allocative policy question. The policy answer is driven by the nature of the question, relative institutional skills, and the importance of the interest at stake. Properly seen as an affirmative right, and not an affirmative defense, the interests at stake in fair use cases are a user’s right to free expression balanced against a copyright holder’s statutory privilege. This Article contributes to the scholarly conversations by laying bare the reality that who decides the question of copyright fair use is nakedly political. Courts are actively wrestling with this unresolved policy question. The Seventh Amendment fashions a policy preference for juries to decide questions of fact. Moreover, history confirms a long tradition of relying on juries to make fair use determinations. But it is unclear if this tradition will continue. Without Supreme Court guidance, categorizing fair use as more law-like or more fact-like is so slippery and malleable that the Seventh Amendment ceases to be an influence — much less a command.

The Effect of the Successful Assertion of the State Secrets Privilege in a Civil Lawsuit in Which the Government Is Not a Party: When, If Ever, Should the Defendant Shoulder the Burden of the Governmentts Successful Privilege Claim?

It is well-settled that the national government has an evidentiary privilege protecting state and military secrets. The privilege protects information that can be vital to the country’s safety and survival. It was expectable that the national government would begin asserting the privilege more frequently after 9/11. The government has invoked the privilege in several prosecutions of alleged terrorists. However, the privilege also applies in civil actions. Indeed, the government may assert the privilege in a civil action even when the government is not joined as a party. The government has the right to intervene for the purpose of claiming the privilege. In recent years, the government has asserted the privilege in a large number of civil actions, including cases involving high technology companies, private security firms, infrastructure contractors, and weapons and aircraft manufacturers. When the government successfully asserts the privilege in a civil action in which it is not a party, the question naturally arises: What is the procedural effect of the assertion? As the quotations at the beginning of this article indicate, the generalization has been that the only effects are that the privileged information becomes unavailable as evidence and that the case can proceed without the privileged evidence. However, Part I of this article demonstrates that that generalization is a gross over-simplification. In many cases, the court terminates the litigation, resulting in a peremptory victory for the defense. The plaintiff loses the opportunity to conduct discovery or take the case to trial. Part II of this article presents a critical evaluation of the current state of the law. The primary thrust of Part II is that at least in one set of circumstances, the plaintiff ought to be permitted to proceed – namely, when (1) the plaintiff has sufficient unprivileged evidence to present a prima facie case, (2) proceeding would not raise a significant risk of the inadvertent revelation of privileged information, (3) the privilege claim affects the defense’s ability to develop an affirmative defense, and (4) the defendant has a closer relationship to the government than the plaintiff. A factual proposition is considered an affirmative defense because the law assigns the defendant the burdens of pleading, production, and proof on the proposition. The allocation of these burdens to the defendant can be outcome determinative. If there were sufficiently weighty policies to assign those burdens to the defendant, in these circumstances the defendant should also bear the burden of the loss of the privileged evidence. The government’s privilege claim neither extinguishes nor diminishes the policies that originally warranted assigning the burdens to the defense. Part II adds that there is a colorable argument that the plaintiff should also be permitted to proceed when the government claim interferes with the defendant’s ability to present a simple defense, merely negating an element of the plaintiff’s case. Part II emphasizes that although the plaintiff should be permitted to proceed in these exceptional cases, the court should not grant the plaintiff the sort of peremptory victory that the defense usually obtains after the government’s claim. Even when the plaintiff proceeds, it is not a foregone conclusion that there will be a plaintiff’s verdict. A key plaintiff’s witness may become unavailable for trial, a nervous witness might forget information critical to the plaintiff’s case, or the witness may display negative demeanor that prompts the jury to disbelieve the witness’s testimony. Hence, the judge should neither enter summary judgment for the plaintiff nor direct a verdict in the plaintiff’s favor. However, the thesis of this article is that in these cases the law should be reformed to accord the plaintiff an opportunity to proceed and fairly win a verdict.

A Path to Protection: Collateral Crime Vacatur for Wisconsin's Victims of Sex Trafficking

Sex trafficking is a form of human trafficking in which a trafficker compels a victim to engage in commercial sex acts. Traffickers often control victims using physical violence, sexual abuse, psychological abuse, isolation, and by introducing victims to illegal drugs. Throughout the course of their victimization, many victims of sex trafficking experience such distress that they turn to drugs to cope or steal to meet their basic needs. Unfortunately, the trauma of trafficking is prolonged and exacerbated when victims are prosecuted for and convicted of crimes they committed as a direct result of trafficking. In addition to prostitution convictions, many victims of trafficking accrue criminal records for “collateral” offenses such as drug possession, theft, disorderly conduct, or weapons offenses. When victims of trafficking have criminal records, they encounter barriers to housing and employment, subjecting victims to lives of poverty, which increases their risk of being re-trafficked. Wisconsin provides victims of sex trafficking with two forms of decriminalization: (1) an affirmative defense to avoid conviction of any crime committed as a direct result of being a victim of trafficking and (2) a pathway for victims of sex trafficking to expunge or vacate prostitution convictions that were a result of being trafficked. Both pathways are insufficient remedies for victims because victim identification is poor and, more importantly, only prostitution convictions are eligible for vacatur or expungement, which leaves victims with criminal records for the collateral crimes they committed as a direct result of being a victim of sex trafficking. Wisconsin should expand its vacatur statute for victims of trafficking to allow victims to vacate or expunge any nonviolent conviction committed as a direct result of being a victim of trafficking. Moreover, an expansion of the vacatur statute for victims of trafficking would better protect victims and help them to reintegrate into life outside of trafficking.

Beyond the Governance Gap in International Domain Name Law: Bringing the UDRP in Line with Internationally Recognized Human Rights

This article maps the substantive international human rights implications of the influential Uniform Domain Names Disputes Resolution Policy (“UDRP”). The UDRP is an international legal framework for resolving disputes between trademark owners and domain name holders, created by Internet Corporation for Domain Names and Numbers (“ICANN”)—a multi-stakeholder non-profit corporation, responsible for managing domain names and addresses globally. I sketch out the human rights implications of the substantial aspects of the UDRP from an international perspective because ICANN has recently added a Core Value of respecting “internationally recognized human rights” to its Bylaws, and the UDRP review is underway in 2020. In this article, I analyze the dominant interpretive approaches of UDRP panelists to illustrate how, from an international human rights perspective, the substantive UDRP elements are currently too broad, and lead to problematic outcomes. While international human rights analysis does not automatically generate pinpoint policy prescription, it provides an additional framework to evaluate ICANN’s policies, expanding the focus and range of responses. I argue that a more precise articulation and reflection of the narrow scope and objectives of the UDRP within its substantial elements (including as they are interpreted and applied) is needed if ICANN is to uphold its human rights Core Value and to ensure that the UDRP is interpreted by the panelists as consistently as possible with international human rights principles. I propose several concrete ways to address the problematic substantive aspects of the UDRP from an international human rights perspective. In particular, the upcoming UDRP reform should include: 1) an explicit reaffirmation of the narrow scope and limited objectives of the UDRP; 2) a clear articulation of the relationship between the UDRP objectives and substantive policy elements; 3) a reaffirmation of the cumulative nature of the bad faith requirement; 4) a revision of affirmative defences available to the respondent; 5) an introduction of an additional defence of an unreasonable delay; 6) an introduction of a choice-of-law provision; and 7) a development of “Uniform Consensus View” at ICANN level to increase consistency and reduce the risk of rogue interpretations of the UDRP by panelists. Ultimately, I propose “returning” the UDRP to its original, narrower objectives to reduce the UDRP decisions’ potential to encroach upon fundamental human rights.

Kahler v. Kansas: Insanity and the Historical Understanding of Mens Rea

In October of this year, the United States Supreme Court will hear the case of Kahler v. Kansas, and it will have the opportunity to answer a question that it has been avoiding for some time: Does the United States Constitution — in particular, do the Due Process and the Cruel and Unusual Punishment clauses — require each of the jurisdictions of the United States to provide an affirmative defense of insanity for those accused of a crime? The petitioner, Kahler, argues that the right to an affirmative defense is deeply rooted in our history and tradition, and so is embedded in our Constitution. To undermine that argument, the State of Kansas attempts to show that eliminating the affirmative defense and limiting the admissibility of evidence of mental illness to its role in rebutting mens rea is consistent with history and tradition. This paper argues that the State misreads the history of mens rea, and that that misreading leads to an equivocation in the State's argument. (This is a pre-review draft of a paper written for the National Law School of India at Bangalore Review.)

Check Your Rights at the Door: Rethinking Confiscatory Regulation

Traditionally, regulatory takings scholarship has focused myopically on real property. Instead, this article explores an underappreciated side of the Takings Clause, offering a systematic analysis of the various strands of takings law that may affect regulation of commercial activity. I give special attention to two fresh U.S. Supreme Court decisions that may invite legal challenges to regimes and regulatory practices that have gone unchallenged in the past. The Supreme Court’s decision in Horne v. U.S. Department of Agriculture, 135 S.Ct. 2419 (2015), makes clear that commercial regulation violates the Takings Clause if it conditions the right to engage in commerce on a requirement to surrender specifically identified personal assets. Likewise, the Court’s decision in Koontz v. St. Johns River Water Management District, 133 S.Ct. 2586 (2013), opens the door for commercial actors to contest exorbitant or unnecessary fees imposed in various regulatory permitting regimes. Accordingly, Horne and Koontz call into question a few common forms of economic regulation, including agricultural check-off programs, certain required pay-check deductions, regulatory authorizations to use company property for non-business purposes, cap-and-trade regulation and other regimes. Yet most regulatory impositions will survive constitutional scrutiny. Accordingly, this article seeks to demarcate the line between ‘confiscatory regulation’ that is vulnerable to challenge and the broader realm of economic regulation that must survive. I argue that this demarcation is firmly rooted in settled takings doctrine, which distinguishes between use restrictions and physical appropriations of private property. Accordingly, since Horne makes clear that all forms of property are protected on equal terms, the Takings Clause generally forbids government from conditioning the right to engage in commerce on a requirement to hand-over identified commodities, products, monies or any other asset. Absent an affirmative defense, such regulation must be enjoined — or, otherwise, “just compensation” must be paid.

Making Too Much of Too Little?: Why 'Motivating Factor' Liability Did Not Revolutionize Title VII

Although the correct causation standard for various employment discrimination statutes continues to be much debated, the most generous standard for plaintiffs – Title VII’s “motivating factor” rule for status discrimination claims – has not had much effect on the ground. In theory, and without much hyperbole, “motivating factor” seems to require finding a violation when even a smidgeon of bias is implicated in an adverse employment decision. Such a finding will not necessarily entitle the plaintiff to full remedies since the employer remains able to limit her recovery by proving that it would have made the same decision in any event; however, the defendant will be adjudicated a violator and be subject to meaningful sanctions. Given this extraordinarily favorable causation structure and substantial evidence that bias continues to manifest in persistent ways in this country, one would expect plaintiffs to be enjoying great success in bringing Title VII status discrimination claims. Perhaps needless to say, that is not the reality. This Article attempts to explain the failure of the motivating factor revolution. It offers three interacting possibilities. First, “motivating factor” is such a dramatic departure from traditional causation analysis that courts understandably have a hard time implementing the concept. Second, and blending into the first, is judicial resistance to such wholesale intrusion into employment decisionmaking, a hostility manifested in a number of ways but most notably in the broader formulations of the “stray-remark” doctrine that have dramatically limited the potential impact of motivating factor liability. Third, plaintiffs’ attorneys have shied away from robustly framing their claims in terms of motivating factor liability because that litigation structure subjects their clients to an employer’s remedy-limiting affirmative defense of “same decision anyway.” Not only does that structure create a tactical problem for many plaintiffs but it also inevitably generates a conflict of interest between attorney and client: The liability/same decision structure allow juries to reach compromise verdicts and, when they do, deny the plaintiff monetary recovery other than fee awards that typically go to their attorney.

Professional liability and patient safety in thromboembolic disease.

Objectives As a potentially preventable severe event, venous thromboembolism can lead to malpractice claims. We aim to identify characteristics of claimed events and to assess possible association between guidelines compliance and professional liability. Methods We analyzed every claim of alleged medical negligence following venous thromboembolism registered at the Catalan Council of Medical Colleges from 1986 to 2014. Results A total of 100 claims related to venous thromboembolism were identified. In 24 cases, out of 95 closed-claims, medical professional liability was the outcome. The specialty with more complaints was Orthopaedic Surgery. In 43 cases, venous thromboembolism occurred in low-risk patients with no prophylaxis prescribed. Professionals’ conduct followed the official guidelines in 73 cases but still 11 of them ended up in professional liability. Nevertheless, liability outcome was significantly associated with non-compliance of guidelines, as well as the absence of a prophylaxis ( p < 0.001). Conclusions Guidelines should be considered not only a patient safety measure but also a relevant issue towards determining the standard of care required in law. However, guidelines compliance does not qualify automatically as an affirmative defense in claims. It is individualized prophylaxis and protocols compliance that makes clinical practice safe and at the same time avoids medical professional liability.

Protecting Sex Trafficking Victims Through Expungement and Vacatur Statutes: Will Virginia Join the Rest of the Nation?

The Virginia General Assembly is making great headway in the fight against sex trafficking, and for that it should be commended. But it is lacking in one key area – enabling victims to expunge or vacate certain offenses from their records. By the very nature and definition of the crime, sex trafficking victims are forced to engage in activity. But rather than identify these individuals as victims in need of care, law enforcement often mistakenly processes them as criminals. With prostitution and related convictions on their records, sex trafficking survivors face significant barriers to obtaining housing, employment, public benefits, etc. Thankfully, there is a solution. Known as criminal record relief laws, these laws enable sex trafficking victims to clear their records of certain offenses that occurred as a result of their being trafficked. While the statutes vary significantly across the states with respect to procedure and substance, all but six states have passed some form of record relief law. Virginia is one of those six states, and Virginia also lacks other key protections for victims like an affirmative defense to prosecutions for prostitution. The Virginia General Assembly must act now and pass a record relief law to protect sex trafficking victims.

Police Sexual Violence: Police Brutality, #MeToo, and Masculinities

A woman alleges that she was raped by a police officer while in police custody. The police officer acknowledges that he had sexual intercourse with the woman, but argues that she consented to the interaction. Despite the obvious power imbalance and troubling context of the sexual activity, in a majority of U.S. states, if the police officer convinces even one member of a jury that their activity was consensual, it is not illegal. Consent is an affirmative defense to allegations of sexual assault— even when the alleged assault occurs while the victim is in the custody of the perpetrator. Allegations of sexual assault committed by police officers while on duty, known as police sexual violence (PSV), are shockingly prevalent and surprisingly underanalyzed. PSV is situated at the intersection of two vital national conversations about police brutality and sexual violence and harassment. This Article is the first to fully address PSV as the product of both issues and to recommend systemic solutions sounding in both debates. The superficial problem presented by PSV is that it is not made clearly illegal by state law and police department regulation. The deeper problem is that PSV is a symptom of broader cultural problems within police departments that can be helpfully parsed through the lens of masculinities theories. PSV is a problem springing both from issues with how police officers relate to the communities they patrol, especially men in those communities, and with how police officers and police culture treat women. These issues are magnified by the famous “blue wall of silence” ensuring loyalty even among police officers who commit misconduct. Any attempt to meaningfully address PSV must take all of these factors into account to work both a legal and a cultural change. This Article offers such solutions, addressing substantive and procedural prohibitions of PSV and broader cultural changes to police departments to combat PSV at its root.

Repurposing the Affirmative Defense of Comparative Fault in Medical Malpractice Cases to Improve Patient Safety

Repurposing the Affirmative Defense of Comparative Fault in Medical Malpractice Cases to Improve Patient Safety

Criminalizing the Victim: Ending Prosecution of Human Trafficking Victims

States are falling short in addressing the human trafficking problem. States focus on punishing traffickers rather than restoring the lives of victims; however, to alleviate human trafficking, states must adopt more victim-centric statutes. This Comment argues that all states, specifically California, Texas, and Florida, should amend human trafficking statutes to provide more victim-centric relief by adopting two measures: affirmative defenses and vacatur statutes. An affirmative defense statute that provides victims a defense for a broader range of crimes committed as a direct result of being trafficked is necessary because convicting victims is not within the five theories of punishment. The ideal vacatur statute would (1) not be limited to prostitution or prostitution-related charges; (2) provide a due diligence time limit; (3) provide for both vacatur and expungement of the victim’s records; and (4) provide government agencies that come into contact with victims of human trafficking the power to promulgate regulations that requires law enforcement, nonprofits, or human trafficking safe houses to inform victims of their judicial protection options once rescued. States could implement this regulation by adopting victims assistance units in the state. Together, these amended statutes would provide victims with the ability to transition back into society successfully and prevent them from returning to their traffickers.

The 'Severe and Pervers-ive' Standard of Hostile-Work-Environment Law: Behold the Motivating Factor Test

It seems that every day the media reports another shocking example of sexual harassment in the workplace. Although federal civil rights law attempts to deter such abuses, the law has apparently failed. The reason for this failure begins with Meritor Savings Bank v. Vinson, the Supreme Court decision ruling that to be actionable a hostile work environment must be so severe or pervasive that it altered the victim’s working conditions and rendered them abusive. Other victims of workplace discrimination are not burdened with these demanding elements because Title VII, as amended by the Civil Rights Act of 1991, does not require them. Title VII merely requires that a victim of workplace discrimination prove that discriminatory intent was a motivating factor for any act “with respect to” a condition of employment. The Supreme Court compounded the error it committed in Meritor when it decided Burlington Industries, Inc. v. Ellerth. That case created an affirmative defense for employers ostensibly accountable for the harassment of their supervisors. This affirmative defense exonerated employers if (1) they had taken reasonable measures to prevent and correct harassment, and (2) the victim did not take advantage of those measures or otherwise failed to avoid harm. This affirmative defense violates the spirit if not the letter of the 1991 Civil Rights Act. The so-called “same-decision” defense, created in Price Waterhouse v. Hopkins, would have exonerated employers who would have made an adverse employment decision regardless of their discriminatory intent. Congress, however, retrenched the defense so that it now merely limits plaintiffs’ remedies. Employers are strictly liable if discrimination was a motivating factor with respect to any employment action. Despite this demonstration of Congress’s displeasure with an affirmative defense in the area of employment discrimination, Ellerth created one. The aggregate effect of Meritor, Ellerth and other Supreme Court decisions has doomed claims alleging serious and sometimes flagrant acts of harassment. To align the elements of a hostile-work-environment claim with the requirements of Title VII, this Article proposes as new standard. It would make actionable words or conduct of a sexual or gender-related nature, which, when taken as a whole, would be highly offensive to a reasonable person and were highly offensive to the victim. This standard would give victims of harassment a fighting chance to find justice.

Brief of Amicus Curiae 290 Criminal Law and Mental Health Law Professors in Support of Petitioner's Request for Reversal and Remand, Kahler V. Kansas, 18-6135 (U.S. June 6, 2019)

Amici curiae are a group of philosophically and politically diverse law school professors and scholars in the fields of criminal law and mental health from a variety of disciplines who have been teaching and writing about the insanity defense and related issues throughout their careers. They include the authors of leading criminal law and mental health law treatises and casebooks and numerous important scholarly books and articles. Amici believe this case raises important questions about principles of criminal responsibility, the integral role of the insanity defense in Anglo-American law, and the inadequacy of the “mens rea alternative” to the traditional affirmative defense. Their teaching and research on the subject have given them a unique appreciation of the historical and doctrinal significance of the defense of legal insanity.

Judicious Imprisonment: Does Current Sentencing for Non-Violent Offenses Promote Political Legitimacy?

Starting August 21, 2018, Americans incarcerated across the United States have been striking back — non-violently. Inmates with jobs are protesting slave-like wages through worker strikes and sit-ins. Inmates also call for an end to racial disparities and an increase in rehabilitation programs. Even more surprisingly, many inmates have begun hunger strikes. Inmates are protesting the numerous ills of prisons: overcrowding, inadequate health care, abysmal mental health care contributing to inmate suicide, violence, disenfranchisement of inmates, and more. While recent reforms have slightly decreased mass incarceration, the current White House administration could likely reverse this trend. President Donald Trump’s and Attorney General Jeff Sessions’s statements and policies that call for increased mandatory sentences, cracking down on illegal immigrants, and aggressively enforcing drug laws might be the iron fist that breaks the back of an already collapsing criminal justice system. Many, including judges currently sitting on the bench, believe that numerous unjust laws and their unjust penalties have brought the United States penal system to this breaking point. To those Americans outside of prison that think they will never be jailed, Tenth Circuit Court Judge Alex Kozinski warns them, “You’re (probably) a federal criminal.” Due to the proliferation of criminal laws, the criminal “justice” system subjects virtually all Americans to the possibility of imprisonment for conduct that does not even come close to meriting imprisonment. Amid this chaos, a deep and fundamental question brews: Can the state justifiably coerce an individual to comply with its unjust laws? Even if the penalties for breaking unjust laws are life in prison or death? If not, then society’s stability is threatened. This article negotiates a middle position. The government is justified in enforcing unjust laws only if these laws are democratically enacted and are almost-just. How much almost-just is depends on the kind of law at issue. Thus, lawmakers, prosecutors, and judges need to carefully distinguish crimes that directly affect only oneself, crimes that are violent, crimes that are primarily monetary-based, regulatory crimes, and others. To implement reforms, this article proposes new affirmative defenses for crimes, enhanced prosecutorial discretion, and more robust judicial review as viable mechanisms to invalidate laws and penalties that are not almost-just.

Justifications, Excuses, and Affirmative Defenses

A defendant who admits to having committed an offense may nevertheless be acquitted if he can provide a legally cognizable justification or excuse for his actions by raising an affirmative defense. This article explains how affirmative defenses generate social benefits in the form of avoided unnecessary punishment. It then asks what kind of evidentiary standards must be used in order to balance these benefits against potential social costs arising from frivolous defense claims. It thereby provides an economic rationale for the uniformity across US jurisdictions in allocating the burden on the prosecution to prove the commission of the offense, as well as the variation across states in the standards of proof they use in determining the validity of affirmative defenses. The analysis also explains why mere assertions of undeterrability should not be considered as affirmative defenses.

Twenty Years After Faragher and Ellerth, Is It Time to Re-visit Strict Vicarious Liability for On-The-Job-Sexual Harassment?

In 1995, I published the attached article in the Cornell Law Review, arguing that a proper application of agency law would impose strict vicarious liability on employers for nearly all on-the-job sexual harassment. (See Exacerbating the Exasperating: Title VII Liability of Employers for Sexual Harassment Committed by Their Supervisors, 81 Cornell L. Rev. 66 (1995).) Three years later, the U.S. Supreme Court decided the cases Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Ellerth v. Burlington Industries, 524 U.S. 742 (1998), taking a different approach. The Court held that in the absence of a tangible employment decision (such as termination of employment), an employer sued for sexual harassment could assert an affirmative defense that it had an anti-harassment policy that the employee unreasonably failed to invoke, and that it vacted properly once on notice of the harassment. As the #MeToo movement dramatically illustrates, in the ensuing twenty years, the law of harassment has woefully failed to protect women workers. All too often women harassed on the job find their cases dismissed or decided against them on summary judgment because they failed to properly follow their employer’s anti-discrimination policy, even when the employer knew of the harassment. As Lauren Edelman argues in Working Law (2016), courts have accepted the existence of anti-discrimination policies as persuasive proof of a lack of discrimination/harassment, even in the face of evidence that the policies are ineffective, or serve only a symbolic purpose. This may be a good time, then, to return to the common law of agency, and the duties it imposes on employers to protect the safety of employees. For good reasons of public policy, worked out over many years, those rules usually impose strict liability on employers for harm caused by or to employees, and treat these as duties an employer may not delegate to others. Re-visiting Exacerbating the Exasperating seems like a good place to start.

Considering the Potential Deterrence Value of Legislation Allowing Hacking Back

Would proposed legislation creating an affirmative defense from prosecution under the Computer Fraud and Abuse Act to those engaging in active cyber defense measures advance efforts to deter state-sponsored hackers from attacking private actors in the United States? I argue that despite legitimate concern regarding the Active Cyber Defense Certainty Act, the United States is in dire need of deterrence mechanisms to stop future state-sponsored cyber attacks and ACDC has at least some deterrent value.