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There Is Work To Be Done: The Evolution of Diversity and Social Justice Themes In Children’s Literature.
No full textThe Evolution of the Magazine: How Digital Innovations Reshaped Magazine Publishing Models.
No full textThe Positive Impacts of YA Books: An Analysis of How YA Fiction Reflects Mainstream Culture and Social Issues.
No full textAging Injunctions and the Legacy of Institutional Reform Litigation
Get PDFInstitutional reform litigation has been an enduring feature of the American legal system since the Supreme Court’s ruling in Brown v. Board of Education. The resulting injunctions have transformed countless bureaucracies notorious for resisting change, including public school systems, housing authorities, social services agencies, correctional facilities, and police departments. But these injunctions face an uncertain future. The Supreme Court has held that institutional reform injunctions must be easier to terminate than all other injunctions issued by the federal courts. Some institutional reform injunctions go unenforced or are forgotten entirely. Others expire due to sunset provisions. At the same time, doctrinal shifts have made it more difficult for plaintiffs to win new injunctions in institutional reform cases.
Scholars have been tracing the decline of institutional reform litigation for years, but little attention has been paid to the fate of the countless injunctions that remain in place. This Article sheds light on this essential but overlooked aspect of institutional reform litigation. First, it identifies three ways that institutional reform injunctions are dying off—by dissolution, by design, and by disuse—and the implications of each form of injunction death. Then, it argues that scholars, judges, and litigants must rethink their approach to the end stages of institutional reform injunctions, offering strategies to ensure that current and future injunctions are not terminated prematurely. This Article thus adds an important new perspective to the debate over the legacy of institutional reform litigation
UFC Fighters Are Taking a Beating Because They are Misclassified as Independent Contractors. An Employee Classification Would Change the Fight Game for the UFC, Its Fighters, and MMA
Get PDFThe current state of affairs in the sport of mixed martial arts (MMA) is overwhelmingly in favor of the companies promoting the fights and not in favor of the athletes actually putting their health and lives at risk. This article looks at the Ultimate Fighting Championship (UFC) and how it classifies its fighters as independent contractors rather than employees, even though it treats the fighters more like employees. This article addresses issues fighters are having with the current classification and then examines how the fighters could be classified as employees. Finally, the article will address what an employee classification would mean for the UFC, its fighters, and MMA in general
Who Got Away With Murder? An Analysis and Discussion About the Death of Sam Keating in Season 1 of ABC’s “How to Get Away With Murder”
Get PDFThis article will address the individuals present in the home and the events surrounding the death of Sam Keating to see if anyone actually got away with murder. The remainder of the article will outline the details surrounding Sam’s death and will address the Felony Murder Rule and accomplice liability. The point of this article is not to make determinative decisions of how a court would rule. Rather, this will address the characters in question based on relevant case law and the Pennsylvania Code of Crimes. The individuals and potential charges would be subject to prosecutorial discretion and reasonable minds may differ about the charges applicable to each individual
Rethinking Riley: Applying Commensurate and Intermediate Scrutiny Standards to Judicial Evaluation of Charitable Solicitation Regulation
Get PDFIn Riley v. National Federation of the Blind, the Supreme Court struck down as unduly burdensome and unconstitutional a North Carolina statute requiring professional fundraisers to disclose to those solicited the average percentage of gross receipts actually turned over to the charity for all charitable solicitations conducted in the state within the previous twelve months. The Court applied a strict scrutiny standard of review of the regulated speech, rather than a more deferential intermediate or rational standard of scrutiny. The Court’s reasoning was that the commercial speech elements of the charity’s message were inextricably intertwined with the fully protected educational portions. It also held North Carolina’s regulations governing application of the statute were not narrowly tailored to achieve the state’s valid interests in protecting charities and informing donors how money contributed was spent.
This article disagrees with Riley’s rationale that the educational elements in charitable solicitations are always so interwoven with commercial speech that a governmental regulation that impinges on a charity’s message should always be subject to strict judicial scrutiny review, and as a matter of course protected by the First Amendment. The reality is that the educational component of many charitable solicitations is formulaic or an afterthought unconnected to the solicitation message. The article contends that if a charity’s costs of fundraising over several years exceeds eighty-five percent of the amount raised, and the actual amount that is used for the charity’s philanthropic mission is miniscule, should create a rebuttable presumption that the charitable program is not commensurate with the resources contributed to the organization. Absent certain exceptions, such organizations should lose their tax exempt status.
Judicial review of such revocations should be subject to a lesser, intermediate standard of scrutiny of review by the courts. There are both common law and federal tax precedents for using a commensurate standard in evaluating whether a charity serves a public purpose relative to its resources and abilities. This approach should pass constitutional muster, and will protect the public from deception and manipulation
When Social Enterprises Fail
Get PDFThis Article identifies the conflicts between social enterprise legislation and bankruptcy law and presents a normative argument for a legal regime that would harmonize the two. Focusing on benefit corporations, the most widely adopted social enterprise form, this Article observes that existing law leaves uncertainty as to the role of directors at a time of financial distress and will produce outcomes that are at odds with the core goals of social enterprise legislation. Then, drawing on academic proposals for contract-based systems of bankruptcy, this Article argues that just as a firm may opt out of a corporate governance norm of pure shareholder wealth maximization through the selection of the benefit corporation form, a firm should be permitted to opt out of a bankruptcy norm of pure creditor wealth maximization through that same selection. A firm and its creditors could thus effectively contract into a unique bankruptcy regime for benefit corporations. Looking to the distinctive treatment of nonprofits and railroads in bankruptcy as precedent, this Article proposes a regime in which the same stakeholder interests that must be considered by the directors of a solvent benefit corporation would be required to be considered by such directors, and by the court, in a bankruptcy proceeding.
Finally, this Article argues that the availability of such a regime as a default rule for benefit corporations would on the whole produce more efficient bankruptcy outcomes. Investors in benefit corporations exhibit a preference for trading off some degree of wealth maximization in exchange for the in-kind returns associated with reducing the negative externalities, and increasing the positive externalities, of corporate behavior. By opting into a stakeholder-friendly bankruptcy system, investors could similarly trade off some degree of wealth maximization, by virtue of a higher cost of debt, in order to reduce the negative externalities and increase the positive externalities of financial failure. By better aligning bankruptcy outcomes with such preferences, the proposed regime would on the whole result in greater efficiency and societal wealth.
This Article proceeds as follows. Part II assesses the origins of social enterprise legislation, the key components of benefit corporations and related social enterprise forms, and the academic debate as to the necessity of such legislation. Part III explores why bankruptcy law matters for benefit corporations and argues that existing law and scholarship provide unsatisfactory guidance as to both the application of existing law and the normative question of what should happen to benefit corporations in bankruptcy. Part IV finds theoretical support for a unique set of bankruptcy rules for benefit corporations in the rich academic literature regarding the theoretical underpinnings of bankruptcy law. Part V draws from the bankruptcy law of nonprofits and railroads to propose specific amendments to both the Bankruptcy Code and benefit corporation statutes so as to implement a unique bankruptcy regime for benefit corporations.6 Then, it analyzes the ex ante efficiency implications of such a regime
Let’s Be Reasonable: Why Neither Nollan/Dolan nor Penn Central Should Govern Generally-Applied Legislative Exactions After Koontz
Get PDFThis article explains why the Nollan/Dolan test should not apply to legislatively imposed exactions, provided that such exactions satisfy two key criteria: (1) the exaction is generally-applied; and (2) the exaction is applied based on a set legislative formula without any meaningful administrative discretion in that application. Legislative exactions that fail to meet those two criteria should be governed by the Nollan/Dolan standard of review in the same manner as the ad hoc adjudicative exaction in Koontz. Furthermore, legislative exactions that satisfy those two criteria also should not be governed by the factored analysis in Penn Central Transportation Co. v. New York City. Instead, a “reasonable relationship” test should be applied to legislative exactions that satisfy those two criteria.
Part II of this Article discusses the constitutional rationales that guided the Court in reaching its decision in Koontz regarding adjudicative monetary exactions. Part III examines how those rationales, as well as the arguments raised by the Koontz dissent, demonstrate that Nollan/Dolan should not govern legislative exactions that are generally-applied and provide no meaningful discretion to administrators. Part IV explains why the Penn Central factored analysis also should not govern legislative exactions that meet those two criteria. Part V demonstrates why a reasonable relationship test that has been employed in various forms by state courts should govern legislative exactions that satisfy those two criteria. Applying that reasonable relationship test to qualifying legislative exactions lessens judicial interference with local land use decisions, reinforces the constitutional rationale in Koontz that development projects should pay for the external costs they create, and addresses the concern of property owners that some generally-applied legislative exactions may “go too far.
Eying the Body: The Impact of Classical Rules for Demeanor Credibility, Bias, and the Need to Blind Legal Decision Makers
Get PDFThis Article focuses on law students and attorneys, not parties, witnesses, experts, and others. Part I briefly provides background: the pivotal role of classical rhetoric in western education, including the United States, the dispositive position of demeanor credibility in oral trial, and the persistent doubts about its reliability—doubts turned into certainty over two decades of research. Part II compares modern and ancient manuals to explain the rules of elite demeanor and its ideological claim to truth. Part III compares ancient and modern understanding of popular delivery; that is, choices in non-verbal communication that run counter to the elite rules and demonstrate affiliation with non-elite groups as grounds for credibility. Part IV shows how elite rules are enforced in law schools and courts, limiting how advocates can speak and, thus, what can be communicated. Part V discusses the role of an assumed natural, common, bodily language in erasing the problem of actual differences and justifying the paradoxical claim that a jury can be manipulated by highly trained professionals, yet ferret out lies. Part VI discusses benefits of the common adoption of elite demeanor and suggests improved instruction at laws schools and screening decision makers in litigation to reduce the cost