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Signaling Sexual Harassment
Get PDFFollowing the Supreme Court’s decision to eliminate the right to abortion in Dobbs v. Jackson Women’s Health Organization, Title IX stands as a potentially powerful statutory bulwark against further erosions of sex and gender equality rights. Title IX’s purpose is to protect against and eradicate sex discrimination of all forms, including sexual harassment, in education. Yet, it rarely fulfills this purpose. Although the Supreme Court has said that sexual harassment is a form of sex discrimination proscribed by Title IX, it has failed to define sexual harassment or provide more than the barest of guidance on how severe it must be to qualify for Title IX’s protection. The lower courts have consequently filled those gaps, and they have done so reductively. Their evaluations regularly exclude all but the most extreme forms of sexual harassment from Title IX’s protection. They thus leave much of the sexual harassment that students suffer in school unchecked by the law designed to expunge it.
Further, these reductive evaluations of students’ Title IX sexual harassment claims have three significant signaling effects. First, with these decisions, courts signal that much of the sexual harassment that occurs in school is acceptable, or the norm. Second, courts signal that schools can teach this sexual harassment norm through what sociologists call the hidden curriculum. Third, courts signal that this sexual harassment norm can pervade democratic and social structures. With these decisions, then, the lower courts do not just allow sexual harassment to occur unabated in school, but they also effectively reinforce it in schools and more broadly.
To reinvigorate Title IX’s purpose, this Article proposes a comprehensive definition of sexual harassment for courts to use in assessing Title IX sexual harassment claims. It also recommends a test for determining the severity of sexual harassment as well as a framework for applying that test that centers students’ experiences of sexual harassment. Together, these reforms would require courts to recognize more sexual harassment under Title IX and therefore restore its power to eliminate sexual harassment in schools
Thunder Road: The Implementation of the Representative Actions Directive in Europe
Get PDFIn December 2020, the European Union adopted breakthrough legislation setting out new rules for collective redress—better known as “representative actions”—in Europe. EU Directive 2020/1828 gives representative entities the possibility to seek injunctive and/or compensatory measures on behalf of groups of consumers affected by mass harm situations. The EU Member States had until December 25, 2022 to transpose the European rules into their national legal systems. The transposition phase was expected to be key as the Directive gives significant leeway to the Member States to decide on several important procedural aspects likely to influence the overall functioning and effectiveness of representative actions. However, the transposition process in the Member States has been complex and led to very different outcomes across Europe. Meanwhile, stakeholders have been preparing to use the new instrument actively
Self-Determination and Territorial Agreements in the Middle East: From the Ottomans to Colonial Rule
Get PDFA Pan-Arab uprising against the Ottomans must have seemed unlikely in the late nineteenth century. Yet, grounded around a common language, history and culture, Arab nationalists demanded their unification in a single nation state. To achieve this aim, they allied with the British and the Entente but soon discovered that territorial and self-determination commitments made to them were not always forthcoming and were interjected with secret agreements and unilateral acts to which they were not privy. While Gulf sheikhdoms entered into consensual protectorate treaties with the British, the former Ottoman territories of the Middle East and the Levante were still contended by the imperialist forces of Britain and France. They continued to administer and exploit these through the League of Nations’ mandate system from 1922 until the early 1940s. During this time, the mandates were considered fully fledged states with a distinct legal personality, albeit lacking independence. From the late 1920s onwards, the Arab nationalist agenda concentrated on the imperial and colonial character of mandates and produced a number of socio-political movements, including Baathism, which culminated in the fulfilment of the “dream” of a unified Arab state in the form of the United Arab Republic (UAR) in 1958 and the rise of Nasser as the chief architect of a new era of Arab nationalism that sought to demonize foreign control and domination in the region. Arab nationalists during the period examined in this article lacked vision, anticipation, and diplomacy and relied heavily on the prima facies justice of their claims. Despite their efforts, it is clear that they were mostly bystanders in the international law developments of that time. The article considers the period from 1880 to 1957
Applying the Model Rules of Professional Conduct to Attorneys Who Draft Unenforceable Noncompete Agreements
Get PDFNoncompete agreements in the employment context have become increasingly controversial. For almost a decade, there has been an ongoing national debate about their enforceability and legality. This debate initially culminated in a proposed, and ultimately final, rule by the Federal Trade Commission (FTC) to completely ban noncompete agreements. Despite increased state and federal regulation of noncompete agreements, workers still incur detrimental consequences due to restraints imposed by the agreements. One reason workers continue to endure negative effects from noncompetes is that some employers disregard state statutes governing noncompete agreements and include unenforceable provisions in their employment contracts. As a result, these unenforceable provisions intimidate uninformed workers and limit their alternative job opportunities to the benefit of the employer.
Although there have been many calls to bring actions against employers who include facially unenforceable noncompete provisions, this Comment delves to the root of the problem: the attorneys who draft the provisions. This Comment’s proposed solution identifies three Model Rules of Professional Conduct, rules 1.2(d), 4.1, and 8.4(c), to serve as the foundation to govern an attorney’s ethical and professional duty in drafting contracts. As the only profession to completely govern itself, there should be a higher ethical standard and level of integrity surrounding the drafting of contract provisions, specifically noncompete terms. Thus, this Comment proposes a new rule and application of Model Rule 4.1 through a judicial holding when an attorney drafts and includes invalid noncompete agreement provisions in an employment contract
Where Custom Dictates: A Comparison of the Integration of Customary Law in Nigeria and South Africa as Applicable to Custody and Family Law Dispute
Get PDFRethinking Health Law Architecture
Get PDFNeither the individualistic regulatory health paradigm nor the vulnerable populations approach of public health can provide the legal structure necessary to address the most pressing problems in health care today. These approaches fail to address conflicts between individuals and populations as well as challenges to qualifying for care and are in inherent conflict with each other, sometimes within the same statute. As health concerns become more global, it is necessary to move past a vulnerable populations approach to a broader population approach that respects individual choice but does not sacrifice community health for liberty interests
Operationalizing Power in Health Law: The Hospital Abolition Hypothesis
Get PDFThis symposium Article describes how prison abolitionist arguments also support the hypothesis that a defining goal of health law should be the abolition of hospitals. Like prison abolitionism, the hospital abolition hypothesis can provide a constructive way to shift the focus of legal analysis from substantive dimensions (in health law — cost, quality, access, and equity) to the dimension of power
Liquidating Fiduciary Warning: Do Not Follow the Yellow (Corp.) Brick Road
Get PDFYellow Corporation, the 99-year-old trucking giant, filed for bankruptcy on August 6, 2023. A week before filing, the company abruptly shut down its operations and laid off its entire workforce of thirty thousand employees. Under the Warn Act, employers like Yellow are required to notify their employees 60 days before conducting any mass layoffs or plant closings. Yellow, however, claimed that it did not need to give any advanced notice to its employees because it qualified for an obscure exception to the Warn Act known as the liquidating fiduciary exception.
Under the sliding scale test established in In re United Healthcare Systems, Yellow presents a strong case that it was a liquidating fiduciary. However, Yellow made the mistake of laying off its workforce before filing for bankruptcy; in other words, Yellow chose to fire-then-file. Although businesses that file-then-fire cannot be liquidating fiduciaries, the court in In re United Healthcare Systems fell short of explicitly laying out this requirement. Applying the liquidating fiduciary exception to Yellow or any business that chooses to fire-then-file would be a mistake and would permit exactly the kind of abrupt mass layoffs that Congress sought to deter when it passed the Warn Act. This Comment suggests that future courts analyzing the exception explicitly lay out a file-then-fire requirement. Similarly, businesses faced with the possibility of bankruptcy and liquidation should be on notice that the liquidating fiduciary exception is not available to businesses that choose to fire-then-file
Chapter 13: Let’s Call the Whole Thing Off
Get PDFCourts cannot agree on much of anything about chapter 13, and legislators cannot agree and are confused over what to do about it. This state of affairs benefits no one and shows no signs of abating. So, in this Article, I propose to throw in the towel by imagining a world without chapter 13. Spoiler alert: although I am not superstitious, with just a few tweaks and tucks to chapter 7, I think the Bankruptcy Code might just be better off operating like a high-rise elevator that goes directly from floor twelve to floor fourteen. I will lay it out and readers can decide for themselves if they are prepared to become anti-choice. For me, in the words of the legendary Louis Armstrong, “and I think to myself what a wonderful world” it would be without chapter 13