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Empowering Diversity Ambition: Brummer and Strine’s Duty and Diversity Makes the Legal and Business Case for Doing More, Doing Good, and Doing Well
Get PDFThe Labor Gerrymander
Get PDFThe foundational metaphor of federal labor law is “industrial democracy.” But like any good metaphor, it is subject to overuse. The National Labor Relations Act (NLRA) grants employees the right to have a say in the decisions that govern their working lives through union representation and collective bargaining. Parties and policymakers often invoke the language of American political democracy when describing and debating that right. Democracy is not a unitary concept, however, and not all norms and concepts from the political sphere can or should translate into the labor sphere.
This Article interrogates the political-model analogy through the lens of one particular political concept that has found its way into labor-law discourse: the gerrymander. From the earliest days of the NLRA to today’s organizing campaign at Starbucks, employers have accused unions of “gerrymandering” the workplace by seeking to represent groups of employees—in labor-law terms, a bargaining unit—who are likely to choose union representation. The gerrymander analogy has not before faced critical evaluation, and it breaks down upon closer inspection. Legislative redistricting and bargaining-unit determinations are distinct exercises with different stakes. Unit determinations treat self-interest as a feature rather than a bug, are not part of a broader political process, and are unlikely to produce harms like entrenchment and excessive partisanship associated with gerrymanders in the political context.
By calling attention to this conceptual mismatch, the Article also identifies how overreliance on the political model is detrimental to the promise of industrial democracy. Delegitimizing union organizing as gerrymandering may lead to fewer votes for unionization. This means less worker voice, which both perpetuates the workplace as an essentially autocratic environment and robs society more broadly of the democracy-enhancing spillover effects of unionization. The irony of the analogy is that it uses the pro-democracy concept of fighting gerrymandering to achieve anti-democratic ends. Importing the gerrymander concept into labor law thus harms democracy, in both its industrial and political manifestations.
National Labor Relations Board, Appellate & Supreme Court Litigation Branch. All views in this article are my own and do not represent the views of the NLRB. Thanks to Craig Becker, Charlotte Garden, Hiba Hafiz, Jeff Hirsch, Gali Racabi, Naomi Schoenbaum, and Kevin Stack for their helpful comments and kind encouragemen
An Evolving Landscape: Name, Image, and Likeness Rights in High School Athletics
Get PDFAmateur sports have entered a changing landscape. The onset of Name, Image, and Likeness (“NIL”) opportunities at the college level has prompted over half of state high school athletic associations to likewise permit high school student-athletes to pursue similar financial opportunities. The purpose of this Essay is not to argue for or against the emergence of NIL opportunities at the high school level but instead to explore this newly evolving landscape, identify accompanying financial dangers, and propose a statutory framework that builds upon California’s Coogan’s Law—a measure providing financial safeguards to children working in the entertainment industry—to better protect minor student-athletes entering into endorsement contracts
Exasperated But Not Exhausted: Unlocking the Trap Set by the Exhaustion Doctrine on the FDA’s REMS Petitioners
Get PDFWhen health is at stake, bureaucratic delays can be disastrous. This is especially true in the field of pharmaceutical regulation. Fortunately, concerned parties—ranging from research institutions and universities to doctors and pharmaceutical companies—can file citizen petitions to urge the Food and Drug Administration (“FDA”) to regulate potentially risky drugs through Risk Evaluation and Mitigation Strategies (“REMS”) programs. But despite submitting comprehensive citizen petitions calling for changes to REMS determinations, petitioners regularly await the FDA’s response for years. When these petitioners, still awaiting an FDA determination, have sought recourse in the courts, the agency has argued that these petitioners have not yet exhausted the FDA’s mandatory administrative remedy. In accepting this argument, courts across the country have misapplied the exhaustion doctrine in FDA cases, depriving potential petitioners of judicial review and leaving the FDA’s original REMS decisions without any oversight. All the while, societal costs of unaccountable drug decisions continue to climb.
This Note examines the dilemma of REMS petitioners, the “exhaustion trap,” wherein petitioners cannot seek legal remedy until the FDA allows them to exhaust their administrative remedy. Through original empirical analysis, this Note finds the FDA responds to fewer than one-third of REMS petitions before its own 180-day deadline, with petitioners languishing for an average of 937.6 days (2.56 years) before the FDA lets them exhaust this administrative remedy. So, petitioners frequently remain trapped and exasperated, while their remedies—-by no fault of their own-—remain unexhausted.
This exhaustion trap is superable, however, and this Note proposes three potential escape routes. First, the plain language of the APA’s statutory provision codifying the exhaustion doctrine — 5 U.S.C. § 704, as interpreted by the Supreme Court in the landmark case Darby v. Cisneros—prohibits the exhaustion trap. Second, this Note proposes an amendment to the Food, Drug, and Cosmetic Act that would waive the FDA’s exhaustion requirement when the FDA disregards its own deadline of 180 days. Finally, this Note suggest that courts should waive the FDA’s exhaustion requirement more readily in these cases. Given the stakes for public health, the American people deserve remedies that are actually exhaustible
Rationalizing a Spousal Confidential Communications Privilege Fit for the Twenty-First Century
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Getting It Right the First Time: Making Child Sex Offender Sentencing in the Fourth Circuit More Efficient with a New Methodology for Crafting Content- Based Special Conditions of Supervised Release
Get PDFDefendants convicted of child-sex crimes across the U.S. Court of Appeals for the Fourth Circuit have brought a number of appeals in recent years claiming that portions of their sentences must be vacated. They assert that the district court judges that sentenced them failed to abide by their statutory obligations under 18 U.S.C. § 3583(d) to appropriately impose certain restrictions on their ability to consume pornographic material or use the internet following their release from prison. While the Fourth Circuit tried to address this issue in 2020, appeals in the following years revealed that some district court judges were still having their impositions of special conditions challenged on either vagueness or First Amendment grounds.
In response to this problem, this Note surveys the mechanics behind special conditions of supervised release, the role of the Administrative Office of the United States Courts in providing guidance to judges to help them decide when to impose these special conditions, and Fourth Circuit trends in upholding or vacating special conditions related to pornography or the internet. It then synthesizes academic literature addressing the scope of potential vagueness and First Amendment concerns and proposes that adding a decision tree to the Administrative Office’s suggestions for imposing special conditions could help judges better decide whether a special condition related to pornography or the internet is appropriate
The Music & Movement: Race, Rhythm, and Social Justice
Get PDFFrom Billie Holiday\u27s Strange Fruit to Public Enemy\u27s Fight the Power to J. Cole\u27s Be Free, music has played a vital role in energizing social justice movements and elevating the legal and social issues facing Black people. An examination into the legal, historical, and social contexts for the music created during ten key movements in Black history reveals the role of lyrics and rhythm. Through the lens of music, ten movements-Freedom, Lynching, the Great Migration, Civil Rights, Black Power, Black Feminism, Police Brutality, Mass Incarceration, Black Love, and Black Lives Matter-demonstrate that Black music is more than entertainment. It is a critique of social ills, a reflection of strength, a source of empowerment, a roadmap for resistance, and a proposal for change. The Music & The Movement: Race, Rhythm, and Social Justice, a seminar course at St. John\u27s University School of Law, examines music\u27s vital role in energizing social justice movements. This Article examines the seminar course and its necessity in the law school White Space. Part I of this Article describes the inspiration for the course and includes a course description. Part II describes the law school White Space and identifies the problems associated with omitting race and social context from law school courses. Part III briefly describes three movements--Lynching, the Great Migration, and Black Lives Matter--and their relation to the music and law of each historical time period. The conclusion demonstrates how the course equips students with the sociohistorical context necessary to advocate for racial and social justice
Golf’s Civil War: The Antitrust Lessons to Learn from the PGA Tour’s Rivalry with LIV Golf
Get PDFThe regulation of professional sports leagues under the Sherman Act presents a unique and, up to this point, unsolved problem. Increased regulation of the United States’ beloved sports is not something that many US citizens would necessarily welcome. And yet, courts are consistently confronted with the dilemma of checking competition “off the field” while attempting to leave unaffected the competition “on the field.” In doing so, courts must reconcile the principles and objectives of the Sherman Act (the Act) with the restraints necessary for the success of sports as an enterprise. While mirroring some of the aspects of traditional trade and business usually subject to the Sherman Act, the inescapable fact is that sports leagues are unique entities and, as such, require different perspectives in the application of governing law.
Using a now-resolved lawsuit filed against the PGA Tour as a case study, this Note explores the application of the Sherman Act to professional sports leagues and how the results have led to an inconsistent, noncommittal string of decisions, leaving the state of the law in flux. Furthermore, this Note addresses the proposition of a more consistent application of the Sherman Act and its intricacies, comparing economically grounded goals of preserving “on the field” competition with the Act’s inherent goals of promoting a competitive “off the field” marketplace