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Behind the current cacophony of concerns about the unemployment rate, slow economic recovery, and U.S. budget deficit, is the ever-present murmur of the impending economic impact baby boomers will have as they retire and rely on government benefits. In 2010 Social Security went “cash negative,” states threatened to drop out of the Medicaid program, and more individuals dipped into their 401k plans for current needs. The “silver tsunami” looms closer as the first members of the baby-boom generation turned sixty-five in 2011, and concerns over how to manage long-term care for elders increase at an individual, state, and federal level. State and federal governments’ concerns come from the heavy burden long-term care for boomers will put on government-funded health services at a time when governments face pressure to cut these services to decrease deficits. Individuals’ worries stem from the need to provide long-term care for themselves or for aging family members.
Individuals who care, or will care, for an aging relative must consider how long-term care duties can decrease both their earning potential in the workplace and their savings as they pay for an elderly relative’s necessities. Caregivers often cannot afford to cut down their time or quit their job outside the home. In order to continue caring for an elderly relative, an increasing number of caregivers are asking elder-law attorneys to draw up agreements in which the caregiver helps the elder for a certain number of hours each week in exchange for an hourly wage. These caregiving agreements benefit both parties by relieving financial strain on caregivers and by keeping elderly relatives out of nursing homes.
While caregiver agreements may reassure individual caregivers, these same agreements are a concern for states. State Medicaid agencies claim these agreements are often a front for elders to gift assets to their children, impoverish themselves, and qualify for the state to pay for long-term care in a nursing home. The high price of nursing home care would quickly deplete most seniors’ accumulated wealth; however, if elders can transfer their assets to their children via a “caregiver contract,” elders may qualify to have Medicaid pay for nursing home care, while ensuring that their posterity will receive an inheritance. States want to preserve scarce resources for those who truly cannot afford care.
This Note will explore the benefits and burdens of courts acknowledging and upholding caregiver agreements, ultimately arguing for more recognition of caregiving agreements to encourage greater numbers of caregivers for the burgeoning elder population. First, this Note will examine the parties to caregiver agreements and what influence their identities may have on a court’s evaluation of the agreement. Parties to a caregiver agreement are typically family members, so the initial discussion of the parties’ identities will lead to a discussion of the cultural and legal presumptions against family-member contracts. Then, turning more specifically to caregiver agreements, this Note will outline the considerations a Medicaid agency uses when deciding if an elder qualifies for benefits. State Medicaid agencies decide long-term care benefits; therefore, this Note will use Massachusetts as a case study to review caregiver agreements evaluated by the Office of Medicaid Board of Hearings and state courts. In light of the decisions in Massachusetts, this Note will propose clarifications to the Massachusetts Medicaid regulations to give Massachusetts and other states direction about how to allow caregivers who truly are rendering services to contract for their services, while avoiding giving elders Medicaid services if their “contract” was merely a gift. In addition, this Note will analyze current presumptions about family members and contracts. Finally, this Note will argue that acknowledging caregiver agreements will benefit caregivers, the elderly, and the state. . .
Although the First Amendment protects the right of free speech, the Supreme Court of the United States has held that certain types of speech made by students on campus may be restricted in public schools. The Court has not addressed, however, student speech originating off campus on the internet, requiring the circuit courts to develop and apply methods of dealing with this type of speech, including the Second Circuit’s approach, commonly referred to as the Tinker test. In Layshock ex rel. Layshock v. Hermitage School District, the Court of Appeals for the Third Circuit considered whether the Hermitage School District could discipline a student, Justin Layshock, for creating an offensive profile on the social-networking website, MySpace, while off campus. The court held that the school district could not regulate Layshock’s speech because not one of the limited circumstances permitting regulation—as prescribed by the Supreme Court—was present.
In December 2005, Layshock, a Hickory High School student, created a profile that mocked his Principal, Eric Trosch, on MySpace. Layshock created this profile using his grandmother’s computer, at her house, during nonschool hours. Layshock granted access to fellow students, and, not surprisingly, news of the profile “spread like wildfire” spawning at least three copycat profiles. Layshock did access the profile he created twice at school, but school officials took action based on the belief that Layshock’s speech was entirely off campus.
On December 21, school officials learned that Layshock may have created one of the false profiles and decided to call Layshock and his mother to a meeting with the Superintendent. At that meeting, Layshock admitted to creating the profile and, without any prompting, walked to Principal Trosch’s office to apologize. School officials took no disciplinary action at the meeting; however, in January 2006, school officials held a disciplinary hearing concluding Layshock had violated the school’s discipline code and instituted various punishments, including a ten-day suspension and placement in an alternative education program.
On January 27, 2006, the Layshocks filed a three-count complaint alleging that the school district had violated Layshock’s First Amendment right to free speech. The district court granted summary judgment in favor of Layshock because the school district failed to demonstrate a sufficient nexus between the profile Layshock made and a substantial disruption at the school. A three judge panel from the Third Circuit affirmed on appeal; however, the Third Circuit vacated this decision and that of a factually similar, yet differently decided, case, J.S. ex rel Snyder v Blue Mountain School District, opting to rehear both en banc to resolve the apparent intracircuit split. After the rehearings, the court reversed J.S. and reaffirmed the earlier holding in Layshock, that the regulation of Layshock’s speech violated the First Amendment. . .
In Janus Capital Group, Inc. v. First Derivative Traders, the Supreme Court produced a decision worthy of Janus, the two-faced Roman god whose image appears on Janus Capital’s corporate logo. The five-to-four opinion by Justice Thomas, while paying lip service to the private right of action under Rule 10b-5, effectively cut off that right for many plaintiffs. The Court in Janus addressed the question of whether a mutual fund’s management could be liable to investors in the fund’s parent company for losses tied to misstatements in the fund’s prospectuses. Answering in the negative, the Court held only a third group—the fund’s independent board of trustees—could have “made” those misstatements under Rule 10b-5. Significantly, the Court concluded only those with “ultimate authority” over a statement are liable for making it—a new Rule 10b-5 standard apparently not limited to the unique structures of mutual fund families.
And so, in its zeal to extend the limitations of Central Bank of Denver v. First Interstate Bank of Denver, eliminating secondary liability for private plaintiffs under Rule 10b-5, the Janus majority provided a roadmap for avoiding primary liability, regardless of culpability. Indeed, the dissent predicted “guilty” management may now be able to launder a false statement through an “innocent” board while avoiding liability for lack of the ultimate authority to make that statement. Janus may have interpreted Rule 10b-5 so narrowly that conceivably no one could be primarily liable for “making” a demonstrably false statement–neither those who wrote it without the necessary authority nor those who approved it without the necessary intent.
Assuming the Court intended, as it said, to retain Rule 10b-5’s private right of action—and assuming Congress, in enacting antifraud legislation, intended someone be held liable for material misstatements in securities filings—this Note recommends interpreting the phrase “ultimate authority,” which is inadequately defined in Janus, to mean “ultimate control,” a phrase appearing synonymously in the majority opinion. As Justice Thomas reasoned, “[w]ithout control, a person or entity can merely suggest what to say, not ‘make’ a statement in its own right.” While the concept of ultimate authority leaves open the question of who is really responsible for a statement, the concept of ultimate control does not. Ultimately, the legislative intent and policies behind Rule 10b-5 will be served best by a precise definition of its contours. . .
“As children, my brothers and I enjoyed a level of freedom that might make a modern parent gasp, and sometimes we exercised that freedom in the kitchen, where we fed one another weird concoctions that tended toward the unhealthy . . . . The only time I ever refused to sample my brothers’ culinary creations was when asked to close my eyes during its preparation. I may have been a child, and one with a sense of humor, but I wasn’t an idiot.”
Leslie Hatfield’s quote raises a simple question—what did her brother have to hide? As one of the most powerful industries in the United States, factory farming has become the dominant source of food production in modern America. Despite its major role in providing food to the public, the factoryfarming industry has landed in the crosshairs of animal-rights and environmental activists seeking to expose the public-health, environmental, and animal-rights violations of commercialized farming facilities. To date, the most common means of exposing these concerns is through undercover investigations—activists pose as employees to obtain footage of animal abuse, health-code violations, and pollution. These investigations have exposed unsavory conditions on factory farms, generated considerable media attention, and created substantial financial consequences for those facilities that have been exposed. In response to the increase of undercover investigations, state legislatures, with the support of factory-farming lobbyists, have passed legislation that will criminalize undercover photography and videotaping on farms, and many other states are attempting to pass similar laws.
Critics of the proposed legislation have commonly referred to the statutes as “whistleblower suppression” laws, while supporters have referred to them as “animal interference” laws, but it was Mark Bittman, of the New York Times, who coined the most popular term—“ag-gag” laws. As of the publication of this Note, five states have “ag-gag” laws on the books, while eight other states are either considering or have recently rejected similar legislation. “Ag-gag” laws take aim at varying levels of conduct, but the behavior targeted by each statute generally falls within one of three categories: (1) dishonesty in the jobapplication process, when the applicant has the intention of infiltrating the facility to investigate; (2) the act of photographing or videotaping on agricultural facilities; and (3) the act of photographing or videotaping, as well as the possession or distribution of such videos.
This Note will focus primarily on the second and third categories of “ag-gag” legislation, analyzing the constitutionality of proposed and existing laws under the First Amendment. Specifically, this Note will address whether photography and videotaping, in the context of undercover farming investigations, should be considered protected speech, and if so, whether “ag-gag” laws amount to impermissible, content-based restrictions on speech. Additionally, this Note will consider whether “ag-gag” laws that place restrictions on the distribution of undercover footage are prior restraints on speech and thus barred under the First Amendment. . .
Charles Fried wrote Contract as Promise because he objected to the idea—growing increasingly prevalent in the years preceding the book’s publication—that something other than moral duty underlay the social institution through which the state intervenes to enforce, at the request of one private party, the promissory obligations of another private party. Under one view, for example, contract law is a product of social development since the Industrial Revolution, the means by which large, impersonal institutions—corporations, unions, governments—regulate their affairs. According to another line of thought, contract law is merely a way of doing justice and imposing social policy on parties who have come, in one way or another, to interact with each other. Professor Fried perceived a wholesale abandonment of the justification of contract law as a means by which the state affirms classically liberal individualism. Or, as he put it, “[t]he validity of a moral, like that of a mathematical truth, does not depend on fashion or favor.” The book is an unapologetic paean to Enlightenment (and particularly Kantian) conceptions of the free and autonomous self, able to injure another not just by way of inducing detrimental reliance, but also by acts of individual will that create disappointed expectations and undermine trust in the recipient of a promise.
For most of the thirty years since its publication, Contract as Promise has carried the lion’s share of the burden of deontological justification for contract law as against theories grounded essentially in consequentialism (the underlying moral basis of welfare economics) or sociology. This issue of the Suffolk University Law Review records a celebration of a man and his work that has stood the test of thirty years’ time as theoretical explanation, normative assessment, and an essential lightning rod for thinkers whose philosophical inclinations may well not accord with Professor Fried’s. On March 25, 2011, we gathered a stellar group of Professor Fried’s friends, admirers, and critics (not mutually exclusive categories, by the way) to consider the impact of his arguments, the current state of contract theory, and the likely direction of future work in the field. . .
Thirty years after its publication, Contract as Promise remains the canonical presentation of a liberal, autonomy-based conception of contractual obligation. In Charles Fried’s words, “The moral force behind contract as promise is autonomy: the parties are bound to their contract because they have chosen to be,” and their “rights and duties [are] as far as possible a function of their own will and not of standards of justice external to that will.” While other strains of liberal contract theory (consent-based, obligation-based) may differ from Prof. Fried’s “will” theory of contracts in other respects, they all share his foundational commitment to the view that promissory obligations, unlike most other forms of obligation, are voluntarily assumed. The same is true of most liberal, autonomy-based conceptions of promissory obligation in the moral realm. The question I wish to pursue here is this: Having established the voluntary nature of promissory obligation, has liberal contract theory (LCT) put itself out of a job? What further role, if any, does it have to play in elaborating the nature and content of promissory obligation? . . .
In the 1980s, Charles Fried was right to focus on what was missing from both the “death of contract” and “law and economics” approaches to contract law: the internal morality of contract. But he focused on the wrong morality. Rather than embodying the morality of promise-keeping, the enforcement of contracts can best be explained and justified as a product of the parties’ consent to be legally bound. In this essay, I observe that, in Contract as Promise, Fried himself admits that the “promise principle” cannot explain or justify two features that are at the core of contract law: the objective theory of assent and the content of most “gap fillers” or default rules of contract law. After summarizing how consent to contract accounts for both of these features, I explain that, whereas the morality of promise-keeping is best considered within the realm of ethics or “private” morality, legally enforcing the consent of the parties is a requirement of justice or “public” morality.
This article begins to articulate a theory that a central moral concern in contract law in action is flexibility to recognize the need for adjustment, release, and forgiveness among good faith parties, most obviously in relational contexts. The article explores some telling examples, from the morality of the businessmen Stewart Macaulay wrote about in Non-Contractual Relations in Business to that of the characters in Harriet Beecher Stowe’s satiric novel The Minister’s Wooing, which puts the need for promissory forgiveness at the center of the dramatic action. Also examined in this article are the animating moral concerns of the law in action school of thought itself. The overall aim is to promote inquiry by contracts scholars into the moral concerns of contracting parties, particularly concerning the question whether a forgiveness principle may be as important as a principle of promise-keeping. . .
Charles Fried’s Contract as Promise is the first post-realist will theory of contract. It is post-realist in two senses. First, Fried has learned the lessons of the realist critique of Langdellian formalism. He does not attempt to deduce the entire law of contract from a single promise principle. The theory is attuned to the multiple purposes and principles, as well as the practical exigencies, that figure into contract law. In his discussion of Red Owl, for example, Fried writes that “contract as promise has a distinct but neither exclusive nor necessarily dominant place among legal and moral principles.” While Fried minimizes the conflict between those different principles and purposes—imagining established boundaries and diplomatic relations rather than competing armies and territorial dispute—his approach is mildly pluralist. Second, the book is post-realist in its implicit rejection of Holmes’s suggestion that scientific study of the law must “wash it with cynical acid.” Fried has also learned the lessons of Lon Fuller’s critique of the realists. While Fried disagrees with much in The Reliance Interest in Contract Damages, I think he is sympathetic to its complaint that “at a time when men stand in dread of being labeled ‘unrealistic’ . . . we have almost ceased to talk about reasons altogether.” Contract as Promise is an inquiry into the reasons for a law of contract—its justification. It attempts to provide a principled account of contract law. . .
Charles Fried’s 1981 book, Contract as Promise, started the modern discussion in the United States and many other places on contract theory, and remains an influential view to which all contract theorists who have come later must respond. This Article will consider two important themes connected with Fried’s project: first, the nature of the theoretical claims in Contract as Promise; and second, the question of whether contract law, especially when this area is equated with the enforcement of promises, is in tension with John Stuart Mill’s “Harm Principle.”
Part I of this Article looks at Fried’s book from the perspective of theory construction, evaluating Fried’s claims in the context of the project of offering a theory of contract law. Part II looks at the way that Contract as Promise has become the center of a question about whether contract law “enforces morality” in an inappropriate way. . .