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Time’s Up: Against Shortening Statutes of Limitation by Employment Contract
Get PDFEmployers are increasingly adding clauses to contracts with employees that purport to shorten the statutes of limitation for employees to pursue claims against their employers (“SOL Clauses”). SOL Clauses are being imposed on employees in various stages of the contracting process. They have turned up in job applications, offer letters, arbitration clauses, employment agreements and employee handbooks. Where they have been enforced by the courts, the justification has been a prioritization of “freedom of contract” over any other policy concerns. This Article argues that, in the employment context, “freedom of contract” should not be prioritized over other competing concerns, which include the potential for overreaching given the inherent imbalance of bargaining power between employer and employee. A very small minority of states have statutes that either prohibit or limit the extent of the enforceability of SOL Clauses. In states without relevant statutory authority, the courts have reached differing conclusions concerning whether to enforce SOL Clauses – sometimes with courts reaching different conclusion on the same exact clause from the same employer’s standard contract. This Article begins with an exhaustive review of how SOL Clauses have been treated by courts. At least two state Supreme Courts have held that a SOL Clause undermines the policy supporting the employee’s underlying claim and, as such, is against public policy. In larger number, other courts have refused to enforce SOL Clauses as “unreasonable,” often under the guise of a substantive unconscionability analysis. At the same time, other courts have held that the clauses are inherently reasonable and enforceable. The result is a current patchwork of often irreconcilable outcomes. In light of the current landscape, the Article discusses the benefits and drawbacks of each of the current approaches, and relates those approaches to well-worn discussions of rules and standards in law design. Ultimately, the Article argues that public policy is a profitable avenue to void SOL Clauses. It does so by referencing recent scholarship that looks to the third-party harm that a contract or clause may cause. The Article argues that this lens justifies invalidating SOL Clauses, which may have the effect of erecting procedural barriers that prevent employees from holding employers accountable on the merits, and might allow employers to continue repeated bad behavior without deterrence or redress. This is especially problematic given that SOL Clauses are presented to employees in standard form contracts. Employers are using these agreements to re-write the rules of the workplace and potentially override legislative judgments about the appropriate limitations period for an employee to pursue a claim
The Roberts Court’s Anti-Democracy Jurisprudence and the Reemergence of State Authoritarian Enclaves
Get PDFThis Essay argues that the Roberts Court has been a pivotal institutional player in destabilizing constitutional democracy. It has enabled states to freely pursue agendas that are authoritarian in nature. And because authoritarianism is contrary to core principles of the Constitution, the Roberts Court’s constitutional jurisprudence has no basis in the Constitution and must ultimately be rejected.
Instead of taking steps to block authoritarian legislation and promote a fair and open political process, the Court has issued rulings catalyzing and reinforcing the authoritarian impulses of the former Jim Crow states. The Roberts Court has engaged in judicial review reinforcing authoritarianism, thereby establishing a constitutional jurisprudence of anti-democracy
The Case Against The Case for Zoning
Get PDFCritiques an article defending zoning. In particular, the article notes that a traditional justification for zoning is that it conserves community character. This argument fails because when people priced out of exclusive neighborhoods move to other areas, they change the character of the receiving area. Similarly, the argument that zoning prevents infrastructure from being overloaded overlooks the fact that if people priced out of one area move to a cheaper area, the latter area\u27s infrastructure is equally burdened. A third argument is that zoning allows local governments to push the costs of growth to developers- but the sluggish growth of U.S. housing supply suggests that development is simply failing to occur in many places
Sounding the Legitimacy Alarm Bell: When Does the Media Discuss the U.S. Supreme Court’s Legitimacy?
Get PDFThese media outlets cover the Court in such ways because they openly promote a particular political ideology through endorsements, donations, ownership, or slant in coverage. They cater to audiences with similar political beliefs and tailor their coverage accordingly. For example, Fox News was created by Rupert Murdoch to appeal to a conservative audience. So, its content is purposefully conservative and assessed as right-leaning by media bias charts. As a result, polling data reveals that Republicans trust Fox News more than any other outlet. At the same time, Robert “Ted” Turner, the founder of CNN, is a donor to left-progressive causes and political campaigns. His network attracts many Democrats, with around eight in ten Democrats claiming that CNN is their main news source. This suggests that the U.S. Supreme Court coverage can be contentious and polarizing, particularly for controversial cases with political implications
Alexander Hamilton and Administrative Law: How America’s First Great Public Administrator Informs and Challenges Our Understanding of Contemporary Administrative Law
Get PDFAlexander Hamilton’s recognition and reputation have soared since the premiere of “Hamilton,” Lin-Manuel Miranda’s musical about him in 2015. For lawyers, Hamilton’s work on the Federalist Papers and service as the nation’s first Treasury Secretary likely stand out more than other aspects of his extraordinary life. Politics and economics were fundamental concerns addressed by the Framers in a number of ways, including what we now refer to as administrative law—the laws and procedures that guide government departments (or, as we say today, agencies). Indeed, “Hamilton” reminds us that questions of administration and administrative law have been with us since the first days of the Republic. Inspired by the musical, this Article examines three related aspects of Hamilton and administrative law. First, while the typical administrative law course is preoccupied with the last century and is anchored in the New Deal, Hamilton’s tenure as Treasury Secretary shows that (administrative) law guided the Treasury Department’s operations and, moreover, that Hamilton took the law into account when leading the Department. Second, in law school, administrative law focuses on legal constraints on the agency rather than internal aspects of administration. Hamilton’s career, which fused contemporary notions of public administration and administrative law, challenges the separation of these two disciplines. Third, separation of powers is the foundation of the administrative law course. As the Article discusses, the Supreme Court considered Hamilton’s views on this subject, specifically in the context of the President’s removal authority, when deciding Seila Law LLC v. Consumer Protection Final Bureau in 2020. In sum, Hamilton and “Hamilton” have much to say about contemporary administrative law
