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Hybrid-Status Immigrant Workers
Get PDFPrecarious work arrangements have become a dominant feature of twenty-first-century political economy. One employer strategy that has contributed to eroding workers’ rights and protections is misclassifying employees as independent contractors, avoiding the obligations that come with employee status. Recently, policymakers in some states and at the federal level have sought to combat this trend by expanding the definition of employment, notably by adopting the three-prong standard known as the ABC test. The misclassification problem has received much attention in both legal scholarship and public discourse, but these discussions have not sufficiently addressed how these reforms affect a particularly vulnerable subset of precarious workers: undocumented immigrants without federal employment authorization.
Immigrant workers often depend on independent contractor status to work. Federal immigration law requires employers to verify that all employees—but not independent contractors—are permitted to work in the United States. As a result, immigrants can work as independent contractors without having to claim fraudulent work authorization. New reforms may improve working conditions for immigrants in precarious occupations by extending to them many of the protections of labor and employment law. However, these reforms may also have the unintended consequence of shutting immigrant workers out of the formal economy by defining more work arrangements as employment.
This Article examines how efforts to combat employee misclassification can include immigrants without federal work authorization. It argues that immigrant workers can hold a hybrid status: defined as employees under new, broader labor and employment law definitions of the term while remaining independent contractors for immigration purposes. As a result, these reforms do not trigger new work authorization verification requirements for employers that make it harder for immigrants to work. At the same time, allowing this hybrid status to exist between work law and immigration law contexts will likely require action on the part of both state legislatures and federal agencies. In the fast-evolving context of immigration federalism, promoting hybrid status for unauthorized workers promises to be a powerful tool for states seeking to implement an inclusive immigration agenda
Guided by History: Protecting the Public Sphere from Weapons Threats Under Bruen
Get PDFSince the Founding era, governments have banned guns in places where weapons threaten activities of public life. The Supreme Court reaffirmed this tradition of “sensitive places” regulation in District of Columbia v. Heller, and locational restrictions on weapons have become a central Second Amendment battleground in the aftermath of New York State Rifle & Pistol Association v. Bruen. Liberals have criticized Bruen for requiring public safety laws to mimic founding practice, while conservatives have criticized it for licensing regulatory change not within the original understanding. In this Article we argue that Bruen’s analogical method looks to the past to guide change in weapons regulation, not to foreclose change. We illustrate the kinds of sensitive place regulations Bruen authorizes with examples spanning several centuries and close by demonstrating—contrary to recent court decisions—that a 1994 federal law prohibiting gun possession by persons subject to a domestic violence restraining order is constitutional under Bruen.
Where some imagine the past as a land of all guns and no laws, this Article shows how weapons regulation of the past can guide public safety regulation of the present. Governments traditionally have protected activities against weapons threats in sites of governance and education: places where bonds of democratic community are formed and reproduced. We argue that Bruen’s historical-analogical method allows government to protect against weapons threats in new settings—including those of commerce and transportation—so long as these locational restrictions respect historical tradition both in terms of “why” and “how” they burden the right to keep and bear arms.
At the heart of this Article is a simple claim: That Bruen’s analogical method enables public safety laws to evolve in step with the gun-related harms they address. Bruen does not require the asymmetrical and selective approach to constitutional change practiced by some in its name. Just as Bruen extends the right of self-defense to weaponry of the twenty-first century, it also recognizes democracy’s competence to protect against weapons threats of the twenty-first century.
We apply these principles to demonstrate the constitutionality of the federal law prohibiting gun possession by people subject to a domestic violence restraining order, which the Supreme Court is currently considering in United States v. Rahimi
It Ain\u27t Real Funky Unless It\u27s Got That Pop: Artistic Fair Use After Goldsmith
Get PDFThe Pop Art style pioneered by artists such as Paolozzi, Lichtenstein, and Rauschenberg challenged notions of what art could be by recasting common objects and images into new contexts, transforming them into pieces that served as both cultural commentary and novel expression. Though examination of an artwork\u27s meaning or message may seem more natural for a critic or curator, the Supreme Court will have a chance to weigh in with Andy Warhol Foundation for the Visual Arts v. Goldsmith. Here, the court will decide whether a Warhol painting based on a photograph of Prince is protected by fair use.
Under copyright law, creators generally have the right to control and profit from secondary works that derive from their original work. An exception to this is the fair use defense, the four-factor test for which is laid out in 17 U.S.C. § 107. At issue in this case is the first factor—the purpose and character of the use. Central to this factor is the notion of \u27transformativeness,\u27 and whether the secondary work possesses a new meaning or message that distinguishes it from the original. This interpretation has been affirmed by the Court multiple times and used effectively for many years.
The Second Circuit departed from that precedent, stating that it is impermissible to consider a work\u27s meaning or message when evaluating whether a work is transformative for fair use purposes. This Commentary argues that the Court should reject the new test proffered by the Second Circuit and affirm the value of considering a work\u27s meaning or message in conducting a holistic fair use inquiry. This approach would protect copyright holders, while also encouraging artistic innovation and expression
Independence Reconceived
Get PDFWhat makes a director independent? Scholars, regulators, and investors have grappled for decades with the fleeting notion of director independence. Originally conceived as guardians of shareholder interests that could safeguard a corporate board’s ability to check management’s power, independent directors have become a marquee feature of modern corporate governance. But do the corporate actions of directors that are considered “independent” under current standards comport with what we think independence requires? In many cases, the answer would seem to be “no.” From a lack of observable financial impact to the unabated flow of corporate scandals, independent directors seem to keep failing at the job they were championed to do.
This Article addresses this puzzling tension, offering a novel theoretical and practical reframing of the decades-old discourse around independent directors. The historical focus on the classical managerial agency costs paradigm emphasized that directors who lack ties to the management team can prevent managerial slack or value extraction. However, this approach overlooks the critical role directors also have in curbing managerial overzealousness. In today’s governance ecosystem, directors are not only tasked with preventing managerial slack. They are increasingly tasked with preventing managerial overreach and misconduct even when such overreach or misconduct is compatible with promoting shareholder value. This has important theoretical and practical implications.
This Article makes two key contributions to the literature. First, it reframes the question of what makes directors independent by supplementing the focus on agency costs as the driver for independence. By identifying a need to prevent boards from rubber-stamping managerial actions—even those taken in good faith—this Article suggests that a simple lack of ties to management fails as a litmus test for independence. Second, by reconceiving independence, this Article also provides tangible credence to the value of diversity on boards, the value and perils of hedge fund activism, and to the emerging discourse regarding ESG and stakeholderism
Never Far from Home: My Journey from Brooklyn to Hip Hop, Microsoft, and the Law
No full textAs an accomplished Microsoft executive, Bruce Jackson handles billions of dollars of commerce as its associate general counsel while he plays a crucial role in the company’s corporate diversity efforts. But few of his colleagues can understand the weight he carries with him to the office each day. He kept his past hidden from sight as he ascended the corporate ladder but shares it in full for the first time here.
Born in Crown Heights, Brooklyn, Jackson moved to Manhattan’s Amsterdam housing projects as a child, where he had already been falsely accused and arrested for robbery by the age of ten. At the age of fifteen, he witnessed the homicide of his close friend. Taken in by the criminal justice system, seduced by a burgeoning drug trade, and burdened by a fractured, impoverished home life, Jackson stood on the edge of failure. But he was saved by an offer. That offer set him on a better path, off the streets and eventually on the way to Georgetown Law, but not without hard knocks along the way. But even as he racked up professional accomplishments, Jackson is still haunted by the unchanged world outside his office.
From public housing to working for Microsoft’s president, Brad Smith, and its founder, Bill Gates, to advising some of the biggest stars in music, Bruce Jackson’s Never Far from Home reveals the ups and downs of an incredible journey, how he overcame many obstacles and the valuable lessons learned along the way.https://scholarship.law.duke.edu/justin_miller_awards_books/1006/thumbnail.jp
Encouraging Ethical Tax Compliance Behaviour: The Role of the Tax Practitioner in Enhancing Tax Justice
Get PDFMatch Up: Increasing Disclosure of Facial Recognition Technology with Criminal Discovery Rules
Get PDFFacial recognition technology (FRT) is an automated computer tool that compares the image of one face in a target image to one or more images of other faces. Law enforcement at both the federal and state levels increasingly use FRT to identify unknown perpetrators of crimes. FRT has great potential to generate investigative leads and assist in solving crimes, but there are issues with the technology and a lack of transparency about how it is used. Further, law enforcement and prosecutors may not disclose information about the FRT search results that they relied on to identify a suspect, affecting defense counsel\u27s ability to pursue mistaken identity defenses.
This Note argues that defendants need a legal mechanism to gain access to information on FRT results and that discovery may be one such mechanism. Although some scholars argue that certain FRT results constitute Brady material, less scholarly attention has been paid to the extent to which different discovery rules could enable defense counsel to access FRT results viewed as part of the investigation.
This Note examines the feasibility of obtaining FRT results under Brady, contending that Brady is not the most practicable vehicle for defendants to obtain FRT results. This Note then summarizes and compares discovery rules in five different jurisdictions, arguing that under current discovery regimes, there are likely significant barriers to defendants attempting to discover FRT results except in certain open file jurisdictions with broadly tailored rules. This Note concludes by recommending that jurisdictions amend their discovery rules so that content like FRT results is more readily discoverable