5450 research outputs found
Sort by
Balancing Freedom of Expression and Equality on College Campuses in the Wake of Intensified Antisemitism
Full text linkThe long-standing debate about free speech on college campuses was reignited by the attack on Israel by Hamas on October 7, 2023. Since then, anti-Israel advocacy at universities has drastically escalated. During demonstrations, protests, and rallies, students shout vile antisemitic slogans, call for the death of Jews and the destruction of Israel, promote violence against Jews, and harass and threaten fellow students because they are Jewish. Some university administrators have been publicly accused of floundering in their responses to intensifying antisemitic campus environments and failing to protect Jewish students from harassment. In defense of their inaction, a frequent retort is that student advocacy is protected by the right to free speech under the First Amendment. University administrators are obligated to effectively balance the protection of free speech with the prevention of student conduct that creates a hostile learning environment for other students. As scholars debate how university administrators can effectuate both important interests, some argue that one must outweigh the other and choose between two deeply valued principles: freedom of expression and freedom from discrimination and harassment. However, neither principle needs to be abandoned. Rather than simply prioritizing free speech as a constitutional right that trumps statutory civil rights law or arguing the untenable position that free speech rights must be curtailed when the harm of discrimination is at stake, university officials possess the inherent legal power and obligation to uphold both fundamental values. A line can be drawn between protected campus speech and unprotected speech and actions that substantially disrupt and interfere with the order and function of universities. This Article proposes that administrators uphold values of respect, integrity, and community by communicating and enforcing content-neutral campus advocacy policies, condemning hatred, and promoting the inclusion of all voices as fundamental to the free expression of ideas and learning. This will enable universities to adequately protect freedom of expression about the Israeli-Palestinian conflict while also providing harassment-free university environments for Jewish students. To demonstrate the necessity, legality, and morality of this strategy, this Article first describes the amplification of the Israeli-Palestinian conflict discourse and the intensification of antisemitism on college campuses since October 7, 2023. Next, it examines the legal requirement to protect Jewish students from hostile environments under Title VI of the Civil Rights Act and criticism of some university administrators for their failure to fulfill this obligation. It then analyzes First Amendment doctrine, demonstrating how the Supreme Court has empowered universities to regulate student advocacy and maintain academic environments conducive to fulfilling their missions while also upholding student free speech protections. Finally, this Article posits that during this time of heightened anti-Israel advocacy and increased antisemitism, American institutions of higher learning have a legal obligation and a moral duty to set parameters for campus advocacy and to create rules of engagement that facilitate constructive dialogue about the conflict in the Middle East
A Call for Statutory Reform: Online Marketplaces that Profit from Product Sales Should Be Held Strictly Liable as Sellers
Full text linkToday, Americans purchase roughly 16% of all consumer goods through online marketplaces such as Amazon. While traditional brick-and-mortar retailers that sell defective products are strictly liable for harm caused by those products, online marketplace retailers, which serve analogous roles in defective product sales, can often evade liability entirely. Amazon, for instance, is immune from liability for product defects in more than 60% of sales conducted on its website in almost every state. This Note explains why online marketplaces that profit from defective product sales should be strictly liable for harm those products cause, and why courts often refuse to hold them liable nonetheless. It then examines proposed legislation holding online marketplace retailers accountable for such harm, before setting forth a model statute
Time to Stop TRIP-ing: The World Needs a New Geographical Indications Agreement
Full text linkWhen it comes to purchasing food and alcohol, a product’s name carries weight and helps consumers make decisions. When the product’s name includes a place and establishes a certain level of quality and expectation, consumers trust that the product is what it purports to be. This concept, the reputation of a particular food product by name, is known as a geographical indication (GI). GIs cover a wide range of products, from the well-known champagne to lesser known products such as Roquefort cheese. GIs create financial value for local producers, contribute to sustainability initiatives, and raise the quality of goods for consumers. Falling under intellectual property law, GIs are governed on the international level under the World Trade Organization by the Agreement on Trade-Related Aspects of Intellectual Property Rights, otherwise known as the TRIPS Agreement. The TRIPS Agreement establishes baseline protections for Member States to follow, protecting certain products whose names have ties to a specific geographical area and indicate a certain level of quality. It included heightened protections for wines and spirits, with plans to continue discussions and expand protections for more products. However, the TRIPS Agreement has not been updated since it went into effect in 1995. The failure to update the agreement and fulfill its original mandate has left GIs vastly unprotected on the global stage. The European Union has led the charge on protecting GIs, with some of the most protective regulations in place today. The European Union has gone further by entering into bilateral agreements with other nations, showing the desire for greater GI protection on the world stage. The time has come for a new, enhanced GI protection system. Protecting GIs will promote economic conditions worldwide, bring developing nations to the table, and give everyone a seat to share the products they are proud of with the rest of the world
THE BROAD CHURCH OF MODERN TEXTUALISM
Full text linkNearly thirty years ago, Justice Scalia’s Tanner lectures branded Holy Trinity Church v. United States (1892) as the anti-textualist archetype, a decision trumping the text’s plain meaning with a suspect judicial investigation of the law’s purpose or spirit. And so Holy Trinity seemed, until Gales and Solan’s groundbreaking empirical study supported an alternative reading of the key statutory term (“labor or service”) that would avoid this conflict between text and purpose. Taking inspiration from Gales and Solan, we reconsider Holy Trinity using the precepts of modern textualism, with its increased emphasis on context, pragmatics, anti-literalism, legal meaning, holistic meaning, non-compositionality, and empirically grounded interpretation. This linguistic and legal analysis supports Holy Trinity’s textualist transfiguration—once decidedly anti-textualist, the decision is now a comfortable application of modern textualism. Whether this illustrates modern textualism’s sophistication or incoherence, it underscores the theory’s reformation and break from the papacy of Scalia
After Further Review: Are NCAA Conferences Now Subject to Antitrust Liability?
Full text linkFollowing the Alston decision, the landscape of college athletics has undergone significant transformation. Although the Supreme Court in Alston previously determined that individual conferences lacked power over the relevant market, this is no longer true for all conferences. This note explores the potential antitrust liability facing individual NCAA conferences in the post-Alston era. It reviews the NCAA’s historical context, its member institutions, and the variations in membership across Divisions and sports. The analysis then shifts to the current state of college athletics, including NIL policies, conference realignment, and media rights deals. The note further assesses whether certain conferences are susceptible to antitrust claims through a rule-of-reason analysis, which reveals that market realities have shifted since Alston, potentially exposing some conferences to legal challenges. Finally, the note proposes strategies for addressing these issues, focusing on mitigating antitrust risks, preparing for potential investigations
Dogma, Discrimination, and Doctrinal Disarray: A New Test to Define Harm Under Title VII
Full text linkHistorically, federal courts have used the “adverse employment action” test in Title VII disparate treatment, disparate impact, and retaliation cases to determine whether a plaintiff has suffered adequate harm. This note argues that this approach is fundamentally flawed. At the outset, the test is a judicial power grab with no support in the statutory language. What is more, it fails to uphold the plain policy purposes for Title VII by largely ignoring evidence of discriminatory acts in the workplace that Congress sought to prevent in passing the statute. Consequently, Title VII plaintiffs get the short end of the stick with courts awarding employer defendants summary judgment at higher rates than defendants in any other area of substantive federal law. As such, the DC Circuit’s decision in Chambers v. District of Columbia sought to remedy this problem by eliminating the adverse employment action test in lateral job-transfer cases. But unfortunatley, its reasoning was as dangerous as the adverse employment action test itself. Chambers not only created a circuit split, but also a high potential for doctrinal instability by ignoring the fundamental principle of de minimis harm that forms the backbone of every federal statute. Accordingly, this note seeks to remedy the shortcomings of Chambers by presenting a new, yet familiar approach to define harm in Title VII disparate treatment and retaliation cases that promotes the de minimis principle, Article III standing requirements, and the plain text and policy of Title VII all in one go. Borrowing from the hostile work environment framework, the test would require courts to ask how severe or pervasive the acts of discrimination underlying the claim are rather than focusing on materially adverse changes to an employee’s work. It is a simple and sensible approach to combat the evil of workplace discrimination
Nationwide Injunctions and the Administrative State
Full text linkWhere an administrative regulation is deemed by a court to be illegal, unconstitutional, or otherwise invalid, courts sometimes issue nationwide injunctions. In other words, instead of holding that the regulation cannot be applied to the individuals before the court, the court prohibits the agency from applying the regulation anywhere in the country, including to others not before the court. This article explores the debate surrounding the appropriateness of nationwide injunctions. While at first glance such injunctions may seem to make sense, they can have serious consequences, including risk of abuse and forum shopping, amplification of erroneous decisions, and the negative impacts of judicial review
Is USMCA Good for Mexican Labor? A Preliminary Analysis of USMCA and Labor Market Outcomes in Mexico
Full text linkThe United States-Mexico-Canada Agreement (USMCA) introduced significant labor provisions aimed at bolstering labor rights and promoting union democracy, representing a departure from its predecessor, the North America Free Trade Agreement (NAFTA). This paper examines USMCA’s potential benefits and limitations on labor, arguing that the trade agreement’s effectiveness in improving labor conditions in Mexico may be limited. By primarily benefitting export-oriented firms, USMCA leaves a significant portion of Mexico’s workforce untouched. Moreover, USMCA\u27s new wage requirements, intended to raise labor standards, may paradoxically increase production costs for formal firms, potentially lowering overall productivity. This paper underscores the persistent formal-informal labor divide in Mexico, suggesting that USMCA alone cannot address this issue and concludes that, despite supporting millions of jobs in Mexico, USMCA is unlikely to lead to widespread improvements in wages and economic productivity in the country without comprehensive structural reforms fostering business growth, strengthening labor regulations, and promoting broader societal engagement
Animals in the Courtroom
Full text linkLaw centers on the experience of the human species. Yet, emerging scholarly and public conversations advocate for bringing animals into spaces once assumed to be human, a growing field known as animal studies. This Article is the first to experiment with how to integrate the more-than-human experience into the courtroom. It specifically reimagines canonical legal cases from the perspective of the animals involved in them. Through the perspective of the animals at issue, it examines cases in which animal interests were considered by human advocates and decided by human judges. This novel technique of de-centering the human requires developing a wholly new, highly experimental methodological framework for how legal scholars and commentators might expand anthropocentric legal processes (such as adjudicating cases) to consider the perspectives of nonhuman animals. This project rests at the intersection of critical animal studies and the burgeoning fields of animal and biodiversity law. More broadly, this Article considers the potential for law to be used to achieve bold aims. Law school curricula have traditionally emphasized teaching students to “think like a lawyer,”—limiting the creative potential of talented minds to fit the conventionality of the field. This Article presents a different, more innovative approach to legal education and scholarship, in which lawyers and legal scholars reimagine social issues, develop new legal realities, and wield the traditional, time-tested tools of our craft in new ways to reach more desirable social outcomes. We identify and explore how lawyers can use the traditional tools of our field (legislation, regulation, common law, constitutional provisions, and private law) to create positive visions for new ways of more equitably co-existing with nature and nonhuman living beings. We are interested in reforming the law to incorporate principles of interspecies equity, which requires institutional shifts away from assumed anthropocentricity through the development of new tools and techniques to integrate the interests of nonhuman living beings—animals specifically for this work—into the field of law
“A Tale of National Disgrace”: Applying the Doctrine of Unconscionability to Establish the Impermissibility of Secret Non-Prosecution Agreements
Full text linkCrime victims are directly harmed by crime and therefore have a stake in, and should be treated as individual participants in the criminal justice process. In recognition of this, Congress passed the Crime Victims’ Rights Act (“CVRA”) in 2004 to enumerate specific rights afforded to crime victims, including the rights to confer with the prosecutor in the case, to be heard at public court proceedings involving a plea or sentencing, to be informed in a timely manner of a plea bargain or deferred prosecution agreement, and to be treated with fairness and respect. Whether the CVRA extends these rights to victims prior to the formal filing of charges is unclear, but since a great deal of criminal cases never lead to charges being filed, many victims are not protected if these rights are not afforded to them during the investigation stage. The consequences of this ambiguity are exemplified by the now infamous 2007 secret non-prosecution agreement (“NPA”) between Jeffrey Epstein and the United States Attorney’s Office for the Southern District of Florida (“USAO,”) in which the USAO agreed to forego federal prosecution of Epstein for sexually abusing more than thirty minor girls in exchange for Epstein pleading guilty to two minor state charges. The existence of the NPA was kept secret from Epstein’s victims for over a year after it was signed. Although the victims subsequently commenced litigation seeking rescission of the NPA on the grounds that the USAO violated their CVRA rights when it concealed the agreement, they were denied the relief they sought. The Eleventh Circuit Court of Appeals ultimately held that since the government never filed federal charges, the victims did not have standing to sue. Accordingly, the secret NPA deprived Epstein’s victims of their CVRA rights and of the opportunity see Epstein held accountable for his criminal conduct. This Note applies the contract doctrine of unconscionability to NPAs entered into in the absence of victim notification and consultation. It argues that principles of unconscionability are inherent in secret NPAs, and thus such agreements should be deemed unenforceable and subject to rescission. To this end, Congress must amend the CVRA to strengthen protections for crime victims and make clear that those protections attach prior to the filing of formal charges. Doing so would ensure that the disgraceful outcome of the Epstein case is not repeated