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The Legal and Ethical Considerations of the Posthumous Retrieval of Gametes
Get PDFIn the United States, federal and state laws on the issue of posthumous retrieval of gametes are almost non-existent. As the field of medicine continues to grow and more posthumous gamete retrieval procedures become viable, state courts and hospitals are left on their own when patients and family members ask their doctors to perform such procedures. As such, there exists wide variability from hospital to hospital and state to state for a deeply personal and time-sensitive procedure. By reviewing state court cases and hospital policies, this article demonstrates the variability between practices and illustrates key questions that arise when requests for these procedures are made. The purpose of this article is to argue for an expansion of the Uniform Anatomical Gift Act (UAGA) which would explicitly allow posthumous gamete retrieval in instances where the deceased donor gives express consent. The vast majority of states have enacted anatomical gift statutes similar or identical to the UAGA. By expanding the UAGA to explicitly include posthumous gamete retrieval procedures, the United States can begin to create uniformity surrounding the practice
TikTok is on the Clock, Will Democracy Stop?
Get PDFOn August 6, 2020, President Trump issued an executive order to deal with a supposed national emergency: TikTok. Jenna Koleson discusses how this severe response to abstract national security concerns sets a dangerous precedent for democracy.https://scholarship.law.slu.edu/lawjournalonline/1042/thumbnail.jp
Reviving Focused Scrutiny in the Constitutional Review of Public Health Measures
Get PDFThis article re-examines the focused scrutiny standard proposed by Prof. Scott Burris in 1989 and argues for its application particularly during an infectious disease emergency such as the COVID-19 pandemic. Focused scrutiny seeks to tie judicial review of the constitutionality of public health measures closely to the facts of the particular disease and to evidence of the efficacy of each governmental action to prevent the spread of that disease, even when courts adopt rational basis testing
Center for Progressive Reform Report: Protecting Workers In A Pandemic--What The Federal Government Should Be Doing
Get PDFThe re-opening of the American economy while the coronavirus that causes COVID-19 is still circulating puts workers at heightened risk of contracting the deadly virus. In some blue-collar industries, the risk is particularly acute because of the inherent nature of the work itself and of the workplaces in which it is conducted. And the risk, for a variety of reasons, falls disproportionately on people of color and low-income workers. With governors stay-at-home orders and other pandemic safety restrictions, Center for Progressive Reform Member Scholars Thomas McGarity, Michael Duff, and Sidney Shapiro examine the federal government\u27s many missed opportunities to stem the spread of the virus in the nation\u27s workplaces, and make recommendations for what needs to happen next to protect employees on the job
New Labor Viscerality? Work Stoppages in the New Work Non-Union Economy
Get PDFCOVID-19 work stoppages involving employees refusing to work because they are fearful of contracting coronavirus provide a recent dramatic opportunity for newer workplace law observers to grasp a well-established legal rule: both unionized and non-union employees possess rights to engage in work stoppages under the National Labor Relations Act (“NLRA”). This article explains that employees engaging in concerted work stoppages, in good faith reaction to health and safety dangers, are prima facie protected from discharge. The article carefully distinguishes between NLRA § 7 and § 502 work stoppages. Crucially, and contrary to § 502 work stoppages, the health and safety-related work stoppages of non-union employees protected by NLRA § 7 are not subject to an “objective reasonableness” test.
Having analyzed the general legal protection of non-union work stoppages and noting that work stoppages had already been on the rise during the preceding two years, the article considers when legal protection may be withdrawn from work stoppages because employees repeatedly and unpredictably engage in them—so called “unprotected intermittent strikes.” Discussing a recent National Labor Relations Board (“NLRB”) decision that could be misinterpreted, the article argues for an updated and strengthened presumption of work stoppage protection for employees wholly unaffiliated with a union who engage in repeated work stoppages that are arguably “intermittent.” The law should presume that the work stoppages of unorganized employees are not part of an illegitimate plan to drive an employer “into a state of confusion.”
Next, the article grapples with looming work stoppage issues emerging from expansion of the Gig economy. When workers are not “employees,” peaceful work stoppages may increasingly become subject to federal court injunctions. The Norris-LaGuardia Act (the venerable 1932 federal anti-injunction law) does not by its terms apply to non-employees—possibly including putative non-employee Gig workers—raising the specter of a new era of “Government by Injunction.” Under existing antitrust law, non-employee workers may be viewed as “independent businesspeople” colluding through work stoppages to “fix prices.” The article argues that First Amendment avoidance principles should guide Sherman Act interpretation when “non-employee” worker activity does not resemble price fixing; that, consistent with liability principles articulated in the Supreme Court’s recent opinion in Sessions v. Dimaya, antitrust law’s severe penalties should not be applied to Gig workers given the ambiguities in federal and state law employee definitions.
Finally, the article considers the potential for individual non-union private arbitration agreements to curtail the NLRA rights of employees to engage in work stoppages in light of the Supreme Court’s labor law-diminishing opinion in Epic Systems
Diploma Privilege and the Constitution
Get PDFThe COVID-19 pandemic and resulting shutdowns are affecting every aspect of society. The legal profession and the justice system have been profoundly disrupted at precisely the time when there is an unprecedented need for legal services to deal with a host of legal issues generated by the pandemic, including disaster relief, health law, insurance, labor law, criminal justice, domestic violence, and civil rights. The need for lawyers to address these issues is great but the prospect of licensing new lawyers is challenging due to the serious health consequences of administering the bar examination during the pandemic.
State Supreme Courts are actively considering alternative paths to licensure. One such alternative is the diploma privilege, a path to licensure currently used only in Wisconsin. Wisconsin’s privilege, limited to graduates of its two in-state schools, has triggered constitutional challenges never fully resolved by the lower courts. As states consider emergency diploma privileges to address the pandemic, they will face these unresolved constitutional issues.
This Article explores those constitutional challenges and concludes that a diploma privilege limited to graduates of in-state schools raises serious Dormant Commerce Clause questions that will require the state to tie the privilege to the particular competencies in-state students develop and avenues they have to demonstrate those competencies to the state’s practicing bar over three years. Meeting that standard will be particularly difficult if a state adopts an in-state privilege on an emergency basis. States should consider other options, including privileges that do not prefer in-state schools. The analysis is important both for states considering emergency measures and for those that might restructure their licensing after the pandemic
A Post-Mortem Review of Forensic Hair Analysis – A Technique Whose Current Use in Criminal Investigations is Hanging on by a Hair
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Crowdfunding Capital In the Age of Blockchain Based Tokens
Get PDFLess than three years ago, the Securities and Exchange Commission (“SEC”) adopted investment crowdfunding regulations (“Reg. CF”) to facilitate small companies’ efforts to raise capital and jumpstart employment, providing companies potentially one of the most disruptive transformations in capital markets. As the lion share of securities are offered under public offerings or Reg. D safe harbor exemptions, outcomes and impacts of Reg. CF offerings are not studied or monitored to the same extent. One line of inquiry is the scope of Reg. CF, including questions about the level of company participation, the types of businesses seeking capital formation, and the quality of the investments offered. This article seeks to answer to what extent Reg. CF investment crowdfunding has facilitated company capital formation and provided a means for investors to purchase suitable investments. Towards that end, the author retrieved data from SEC Form C notice filings and other SEC filings completed by companies beginning with Reg. CF’s adoption date through June 30, 2018. To illustrate the findings, this article proceeds in five succeeding substantive parts: PART II provides a brief history of the Reg. CF exemption law and the research findings about investment crowdfunding, generally and digital tokens, more specifically; PART III provides insights of the current state of offering blockchain based digital tokens to unsophisticated investors and the silver linings in the data; PART IV provides recommendations towards a path forward in Reg. CF. First, the SEC should re-evaluate its regulatory policy in light of the proliferation of blockchain based token offerings, gaps in funding portals and provide additional warnings to unsophisticated investors who may be taking on enhanced investment risk. The uncertainty and risk of digital tokens reliant on blockchain technology foretells a troubling high risk of investment loss, which may be in addition to the expected high risk of loss for startup tech companies. Second, companies, particularly idealistic tech startups, that are considering the offer of digital tokens, should thoughtfully consider alternatives to these offerings. There remains a level of uncertainty and risk in these offerings, which could result in greater risk and liability than the alternative financing available to them. Last, economic development organizations should consider developing their role in attracting, designing and implementing funding portals to provide the support that tech and other startup companies need to raise capital for their business;PART V provides concluding remarks