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Antiracist Lawyering in Practice Begins with the Practice of Teaching and Learning Antiracism in Law School
No full textI was honored by the invitation to deliver the 2021 Lee E. Teitelbaum keynote address. Dean Teitelbaum was a gentleman and a titan for justice. I am confident the antiracism work ongoing at the S.J. Quinney College of Law would have deeply resonated with him, especially knowing the challenges we are currently facing within and outside of legal education, the legal academy, and the legal profession. I am fortified in this work by Dean Elizabeth Kronk Warner’s commitment to antiracism and associated diversity, equity, and inclusion work. Finally, I applaud the students who serve on the Utah Law Review for their vigilance in using the power of scholarship, convening, and discourse to generate knowledge and inspire action that will be meaningful to our teaching and learning communities as we tackle the perennial issue of systemic racial inequality and intersectional injustice.This Essay is a call to action for legal education, the legal academy, and the legal profession in America to address the complicity of law and legal systems in scaffolding systemic racial inequality and intersectional injustice. The focus on legal education, the legal academy, and the legal profession is necessary for two reasons: first, throughout history, the law has been used to design a system that has and continues to advantage some and to oppress others in American society; and second, the special duty of those within the legal profession is to use the law as a tool to promote democracy and democratic ideals, not to diminish or dismantle them. As such, this Essay proposes the use of antiracism in teaching, learning, and practice to acknowledge the persistence of systemic racial inequality and intersectional injustice, to become competent in using pedagogy and practice to prepare methods of resisting systemic racial inequality and intersectional injustice, and to act to embed antiracism into our democratic institutions to promote system equity
How Can Federal Actors Compete on Noncompetes? Examining the Need for and Possibility of Federal Action on Noncompetition Agreements
No full textEmployees have been frustrated by the restrictiveness of noncompete agreements and confused about their enforceability for decades. The added complication of choice-of-law provisions in employment contracts with noncompetes creates a sea of unpredictability for both employees and employers.
Each state applies its own policy to noncompete agreements. While every state treats noncompetes differently than typical contract provisions, a broad spectrum exists between the states that are friendly and those that are hostile to the enforcement of noncompetes. Employees and employers often fail to understand whether their noncompete is enforceable under the jurisdiction chosen by the contract, and courts override choice-of-law provisions in connection with noncompetes in an unpredictable manner.
This lack of clarity has caused employers and employees to disregard state law, with noncompete agreements occurring at a steady amount in all states, regardless of a state’s relative stance on them. A federal policy on noncompetes would alleviate this uncertainty for both parties, protect employees from unfair or unenforceable noncompetes, and maintain employers’ legitimate business interests in a reasonable noncompete.
This Comment will examine the prospects of both federal legislation and a Federal Trade Commission (FTC) rule. Federal legislation is the most effective means to address the aforementioned issues and preempt state noncompete law. In the alternative, an FTC rule, although possible with a motivated FTC, faces a number of challenges for both rulemaking and preemption of state laws. Although the FTC likely has the authority to create a
beneficial noncompete rule and preempt state law, Congress should be the entity to regulate noncompetes because federal legislation is more likely than an FTC rule to survive legal challenges
Navigating Beyond the Lodestar: Borrowing the Federal Sentencing Guidelines to Provide Fee-Shifting Predictability
No full textThe lodestar has been the dominant calculation method for fee-shifting awards for nearly 40 years. But the lodestar has numerous persistent issues: it leads to extra litigation and judicial effort, it results in highly variable fee awards, and it incentivizes plaintiffs’ attorneys to bill extravagantly and reject settlement. This Article argues that these issues with the lodestar, along with many others, result from a mismatch between the lodestar and the purpose of the underlying fee-shifting statutes, which is to encourage attorneys to bring suits that would not normally be economically viable. Encouraging attorneys to do so requires the fee awards to be predictable. This Article concludes that predictability is impossible within the lodestar, which allows an attorney to set the base calculation and asks a judge to use percentage cuts to arrive at a just result. This Article therefore proposes adopting a framework for fee awards that resembles the Federal Sentencing Guidelines, using an automatic calculation to set a fee range that the judge can work within or, in an unusual case, from which the judge can deviate upward or downward. This framework will address each of the lodestar’s persistent concerns and provide the predictability that will encourage the cases these fee-shifting statutes intend to encourage
Retirement Lost: Enhancing the Durability of the 401(k) Account
No full textAmerican workers have left billions of dollars in 401(k) accounts that they may never be able to find. The problem affects low-wage workers the most, aggravating income-based retirement inequality. Workers who are laid off or change jobs often leave their 401(k) savings in a former employer’s plan. As time passes, communication breaks down between departed employees and their plans, and changes to the employer, plan provider, or individual accounts may prevent the worker from finding the account. Once participants and plans have lost contact with each other, many plans force transfer balances under $5000 into Individual Retirement Accounts, without the knowledge of the absent account owners. Whether a retirement product can endure for the years necessary to provide retirement support—what this article calls the product’s “durability”—depends upon (1) whether the product retains its value and (2) whether the owner will, as a practical matter, retain access to that value over time. This Article argues that there is an urgent need to enhance the practical durability of 401(k) accounts, and advocates for the consolidation of plan and individual account information into an accessible Retirement Savings Lost & Found database. A database that utilizes and leverages information already existing across government agencies will empower workers and retirees to locate their lost accounts, building a stronger and more equitable retirement system for the future
Truth and Reconciliation: The Ku Klux Klan Hearings of 1871 and the Genesis of Section 1983
No full textOver the course of seven months in 1871, Congress did something extraordinary for the time: It listened to Black people. At hearings in Washington, D.C. and throughout the former Confederate states, Black women and men—who just six years earlier were enslaved and barred from testifying in Southern courts—appeared before Congress to tell their stories. The stories were heartbreaking. After experiencing the joy of Emancipation and the initial hope of Reconstruction, they had been subjected to unspeakable horror at the hands of white terrorists. They had been raped and sexually humiliated. Their children and spouses murdered. They had been savagely beaten and forced to seek refuge in swamps. The terrorists were often state actors or respected members of society who claimed to engage in savagery for self-defense and community protection. And state courts were unable or unwilling to prosecute the crimes. Congress listened and did something else extraordinary. For the first time in American history, Congress interposed federal courts between the states and their citizens as guardians of federal constitutional rights. Through the Ku Klux Klan Act of 1871, which includes what is now codified as 42 U.S.C. § 1983, Congress rejected the proposition that the federal government had no power to intercede when state officials violated the federal constitution. Section 1983 provides a federal remedy for constitutional violations committed by state actors. The text is plain: Any state actor who violates the federal constitutional or statutory rights of any U.S. citizen “shall be liable to the party injured in an action at law.” But the Supreme Court of the United States has refused to enforce the statute as written. The Court instead invented the doctrine of qualified immunity that shields state actors from liability under Section 1983 unless victims can identify prior precedent where a state actor violated federal rights in a nearly identical manner. With the U.S. Supreme Court’s blessing, federal courts have granted qualified immunity to state officials who violate federal rights in increasingly depraved and unreasonable ways. This Article demonstrates that the Supreme Court is permitting the very evil that Section 1983 was designed to end. This Article does so by reviewing the painful narratives of the courageous Black people who testified before Congress in 1871. The Ku Klux Klan Hearings were the United States’ closest attempt at truth and reconciliation in the aftermath of slavery and the terror that followed. The testimony is replete with examples of a particular form of violence—assaults committed by state actors that local governments were unable or unwilling to remedy—which Congress specifically sought to rectify through Section 1983. And it is this precise form of violence that the Supreme Court of the United States permits through its expansive application of qualified immunity
Answering the Cyber Oversight Call
No full textIn the past few years, a revised cyber strategy, a spate of new cyber authorities, and revamped presidential directives have significantly expanded the cyber capabilities of the U.S. military. This expansion has coincided with a weakening and dispersion of traditional congressional oversight mechanisms, creating a separation of powers mismatch. This mismatch, and the necessarily stealthy features that characterize cyberoperations, inhibit Congress’s ability to gain a comprehensive understanding of the use and deployment of these cyber powers, while obscuring the use of such powers from the public as well. Put bluntly, the traditional congressional oversight mechanisms are not suited to the cyber oversight task. There is a need to find alternative players able to answer the cyber oversight call. To fill this gap, scholars have proposed various “surrogates” and “intermediaries” including foreign allies, local governments, technology companies, and other private sector actors. This Article urges a different approach by examining the consequential role of the Department of Defense Office of Inspector General (DoD OIG) from the cyber oversight perspective. Although often maligned and misunderstood as the bean counters of the federal government, inspectors general serve critical functions in our constitutional scheme, both as internal checks on abuses of executive power and as conduits of information to the legislative branch. The DoD OIG is uniquely positioned and equipped to fill the gaps in the cyber oversight framework, and to ensure that the political branches are working together to appropriately limit and guide the use of these vast new cyber powers. In sum, this Article explores the DoD OIG’s distinctive ability to answer the cyber oversight call
