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Confronting Structural Inequality in State Labor Law
Get PDFLow-wage workers face a structural problem in seeking to improve their work standards: While companies have substantial labor market power to impose work terms and conditions, workers require affirmative state support to collectively press their workplace demands. But their employers can mobilize private capital and property rights, often with judicial deference, to fend off state intrusions into the workplace. While the National Labor Relations Act aims to resolve this structural problem by protecting the rights of workers to join unions, strike, and collectively bargain, employers, backed by judicial support for managerial prerogatives and property rights, can often leverage NLRA weaknesses and limitations to its scope to prevail in labor contests
To build union density and political power for low-wage workers who cannot effectively access federal labor rights, such as home health care workers, fast-food workers, and app-based drivers, unions and worker centers seeking to organize these workers have, increasingly, turned to state and local law, instead of or in addition to the NLRA. Groundbreaking state and local economic and racial justice campaigns have expanded labor rights and enabled these workers to participate in state and local labor policymaking to raise their workplace standards. But the turn to state and local government does not avoid the structural problem. Employers reproduce structural inequality in state law, often by dominating state initiatives and legislative processes, in order to limit, nullify, or coopt state and local labor law. The NLRA does not preempt these employer counterstrategies, and federal constitutional challenges to them typically fail because federal courts often view these labor contests as ordinary politics beyond constitutional scrutiny.
Mapping the structural problem in state and local labor contests underscores the importance of state law to confront it, as shown in recent legal mobilization of state constitutions by unions and worker centers to reduce structural inequality and build countervailing power. Repositioning state labor law as a potential foundation for labor revitalization has practical and theoretical implications for the future of low-wage worker organizing. State labor constitutionalism, and legal and administrative designs that encourage direct worker participation in state sectoral standard-setting and in local labor policymaking, can protect state labor policymaking from employer cooptation and nullification. These prescriptions can contribute to the foundational NLRA purpose of reducing structural inequality by building countervailing power in the states
Project 2025 & Environmental Injustice
No full textWe discuss “Cancer Alley,” an 85-mile stretch between Baton Rouge and New Orleans that contains one of the largest concentrations of fossil fuel and petrochemical operations in the Western Hemisphere. These facilities expose nearby residents, who are disproportionately Black, to toxic pollutants and “severe health harms including elevated burdens and risks of cancer, reproductive, maternal, and newborn health harms, respiratory ailments.”
Louisiana and the federal government have long failed to remedy these harms. In 2022, local community groups filed multiple complaints with the U.S. Environmental Protection Agency (EPA) that alleged Louisiana’s failure to address these harms violated Title VI by “subjecting Black residents to ongoing disproportionate and adverse health and environmental impacts.” These complaints prompted the EPA to investigate. In response, Louisiana sued the federal government. The state argued that it was unlawful for the EPA or the Department of Justice to enforce Title VI’s “disparate impact” regulations. Why? Because doing so forces the state to consider race. According to Louisiana, having to consider a policy’s racial impact is just another form of racial discrimination. If that sounds familiar, it might be because it also appears in Project 2025, the Heritage Foundation’s playbook for a Trump presidency.
A Trump-appointed judge recently sided with Louisiana. To justify a ruling that deprives Cancer Alley’s residents of legal relief, the judge repeated the claim that attending to racial disparities is itself racist: “The public interest here is that governmental agencies abide by its laws, and treat all of its citizens equally, without considering race. To be sure, if a decision maker has to consider race, to decide, it has indeed participated in racism.
Prosecutorial Data Transparency and Data Justice
Get PDFThe U.S. criminal legal system is notoriously racialized. Though Black and Latinx people make up less than 30% of U.S. residents, they constitute more than 50% of the nearly two million people currently in U.S. prisons and jails. For decades, research has indicated that one group of decision-makers has had an outsized influence on these numbers: prosecutors. From whom to charge to what sentences to recommend, no actor plays a greater role in determining who goes to prison in this country. Highly subjective and lacking in formal guidance and accountability, prosecutorial decisions are especially vulnerable to racial bias. They are also cloaked in secrecy. Data about how and why prosecutors make decisions often does not exist or is shielded from public view. As a result, it has been nearly impossible to determine the extent to which prosecutors’ decisions contribute to racial disproportionality in the criminal legal process, let alone whether such decisions are the product of racial bias.
This Essay argues that prosecutors’ offices must collect, maintain, and publish standardized data on the bases of their charges, declinations, plea offers, and resolutions if we are to ever understand and address vectors of racial bias in the criminal legal system. Contextualizing this “call for data” within two case studies—one on the racialized impact of felony murder and accomplice liability murder laws and the other on the California Racial Justice Act—we demonstrate how prosecutorial data transparency would enable researchers, advocates, and policymakers to better identify and remediate racial bias in decision-making. Data transparency would also promote prosecutorial accountability both internally and externally.
Legislative efforts to implement data transparency must address privacy and surveillance concerns, especially since prosecutorial data transparency would expand a carceral source of information. At the same time, the consequences of data opacity are already shaping case outcomes. In this way, data transparency provides one remedy for currently unchecked systems, and serves as a step towards data justice
Sports Participation by Athletes With Cardiovascular Disease
No full textMillions of young people participate in competitive sports, with well-documented physical and psychological benefits.1 Athletes may be diagnosed with cardiovascular disease (CVD) during evaluation of symptoms, routine preparticipation screening, or clinically indicated family screening. When this occurs, decisions about return-to-play (RTP) are difficult, especially in circumstances when risk may exist or be unknown. Historically, expert consensus documents such as the Bethesda Conference Proceedings,2 provided a “yes/no” approach to RTP after a diagnosis of a CVD such as hypertrophic cardiomyopathy (HCM) or long QT syndrome (LQTS). These recommendations were made with a paucity of data, and were predicated on a zero-risk tolerance—that is, only an individual whose risk was no more than the general population should participate in sports.2 This approach inherently fostered paternalistic decision making, in which physicians and institutions made decisions without input from the athlete and family.
With exclusion from sports comes loss of these physical and psychological benefits,1 with documented adverse effects on psychological health. Sports may provide the foundation of an athlete’s identity, as well as provide coping mechanisms. Restriction may lead to loss of the support of the team environment and significant psychological distress.3,4
The approach to the athlete diagnosed with CVD who wishes to RTP has been debated for decades5 (referenced in Shapero et al3 and Martinez et al4). Emerging data and the evolving role of shared decision making (SDM) in medicine have resulted in significant evolution of guidelines and a paradigm shift in approach to these athletes. As such, SDM in RTP, and its ethical and legal bases should be re-addressed in this context
Kafka in the Age of AI and the Futility of Privacy as Control
Get PDFDespite writing more than a century ago, Franz Kafka captured the core problem of digital technologies—how individuals are rendered powerless and vulnerable. Over the past fifty years, and especially in the twenty-first century, privacy laws have been sprouting up around the world. These laws are often based heavily on an Individual Control Model that aims to empower individuals with rights to help them control the collection, use, and disclosure of their data.
In this Article, we argue that although Kafka starkly shows us the plight of the disempowered individual, his work also paradoxically suggests that empowering the individual isn’t the answer to protecting privacy, especially in the age of Artificial Intelligence (“AI”). In Kafka’s world, characters readily submit to authority, even when they aren’t forced and even when doing so leads to injury or death. The victims are blamed, and they even blame themselves.
Although Kafka’s view of human nature is exaggerated for darkly comedic effect, it nevertheless captures many truths that privacy law must reckon with. Even if dark patterns and dirty manipulative practices are cleaned up, people will still make bad decisions about privacy. Despite warnings, people will embrace the technologies that hurt them. When given control over their data, people will give it right back. And when people’s data is used in unexpected and harmful ways, they will often blame themselves.
Kafka’s writing provides key insights for regulating privacy in the age of AI. The law can’t empower individuals when it is the system that renders them powerless. Ultimately, privacy law’s primary goal should not be to give individuals control over their data. Instead, the law should focus on ensuring a societal structure that brings the collection, use, and disclosure of personal data under control
The US Presidential Election’s High Stakes for the Future of Medicine
No full textThe November 2024 US presidential election carries enormous stakes for the future of medicine and the health of the nation. The 2 parties’ platforms, and the policies driving their commitments, reflect vastly different perspectives on regulatory competence, deference to scientific expertise, and the value of medical care. The Democratic Party Platform includes dozens of pages of health reform proposals.1 The Republican Party Platform includes a few sentences on health care–related issues.2 However, the specifics may be found within a policy “playbook” published by Project 2025 outlining a “comprehensive, concrete transition plan for each federal agency,” with action items for the first 180 days of a Republican administration.3 Far from prioritizing “the health and well-being of all Americans at all stages of life,” as Project 2025 claims, the playbook presents an antiscience, antidata, and antimedicine agenda
I Thought the Bragg Case Against Trump Was a Legal Embarrassment. Now I Think It’s a Historic Mistake.
No full textAbout a year ago, when Alvin Bragg, the Manhattan district attorney, indicted former President Donald Trump, I was critical of the case and called it an embarrassment. I thought an array of legal problems would and should lead to long delays in federal courts
Jack Daniel’s and the Unfulfilled Promise of Trademark Use
Get PDFIn Jack Daniel’s v. VIP Products, the Supreme Court announced a bright-line rule: whatever speech protections govern the use of trademarks in artistic works, no such rule applies “when an alleged infringer uses a trademark in the way the Lanham Act most cares about: as a designation of source for the infringer’s own goods.” Those who engage in “trademark use,” in other words, must face the usual likelihood-of-confusion standard, regardless of whether their use also has expressive dimensions. The Jack Daniel’s defendant conceded that it was engaged in trademark use, so the opinion did not do the hard work of distinguishing between trademark use and non-trademark use. And its failure to do so has begun to wreak havoc in the lower courts. This essay makes three small but hopefully clarifying points to help lower courts apply the rule announced in Jack Daniel’s. First, it examines the relationship between Jack Daniel’s and Rogers v. Grimaldi, which the Court did not repudiate but treated as a prototypical example of non-trademark use. Under Jack Daniel’s, uses of marks in expressive works are not ordinarily trademark uses, contrary to some recent lower court decisions. Second, drawing from hints in Jack Daniel’s, we find that the Court contemplates a bounded notion of trademark use that reflects the language and the normative goals of the Lanham Act. Finally, we close with some suggestions, again drawing on Jack Daniel’s itself, on how to tame the likelihood-of-confusion test to protect expressive speech
The Partisan Republic: Democracy. Exclusion, the the Fall of the Founders\u27 Constitution, 1780s-1830s
Get PDFThis article is a forum on Gerald Leonard and Saul Cornell\u27s The Partisan Republic: Democracy. Exclusion, and the Fall of the Founders\u27 Constitution, 1780s-1830s (Cambridge University Press, 2019). ISBN 978-1-107-02416-8
Roundtable Contents: Introduction by Matthew Crow, Hobart and William Smith Colleges Review by Katlyn Marie Carter, University of Notre Dame Review by Graham G. Dodds, Concordia University, Montreal, Canada Review by Jessica K. Lowe, University of Virginia School of Law Review by Stephen J. Rockwell, St. Joseph\u27s University Author\u27s Response by Saul Cornell, Fordham University Author\u27s Response by Gerald Leonard, Boston Universit
A Critical Perspective on Testimonial Injustice: Interrogating Witnesses\u27 Credibility Excess in Criminal Trials
Get PDFThis paper offers a critical race theory perspective on the testimonial injustice experienced by racially minoritized criminal defendants in evidential practice. It builds off Federico Picinali’s paper, inter alia, substantiating how minoritized criminal defendants experience testimonial harm through credibility deficit, by exploring epistemic injustice to the same when prosecutorial witnesses receive identity-based credibility excess. It argues that in an adversarial criminal legal system, the testimonial injustice of credibility excess afforded racial in-group prosecutorial witnesses should be considered in tandem with the testimonial injustice of credibility deficit imposed on racial out-group defendants. Only then can the epistemic harm and resultant unfairness at trial for defendants be fully assessed. The paper advocates for expanding the definition of testimonial injustice to encompass the epistemic wrong of socially biased credibility excess and “transferred epistemic harm.” In instances of transferred epistemic harm, the harm inflicted by an epistemic wrong impacts the speaker’s interlocutor rather (or more) than the speaker themselves