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To Bar or Not to Bar: Title I of the ADA and After-Acquired Evidence of a Plaintiff\u27s Failure to Satisfy Job Prerequisites
Get PDFThrough enactment of Title I of the Americans with Disabilities Act (ADA) in 1990, Congress unequivocally resolved to prohibit discrimination on the basis of disability in the workplace. However, distortions have since created loopholes through which disability-based employment discrimination may freely slip. An enforcement regulation promulgated by the Equal Employment Opportunity Commission (EEOC) enables such circumvention of the ADA by creating an additional prima facie requirement: a plaintiff must not only be able to perform the essential functions of the position as required by the statute, but must also satisfy all job-related requirements of the position as demanded by the EEOC’s 29 C.F.R. 1630.2(m). Thus, in cases where a plaintiff’s failure to satisfy job prerequisites is discovered only after the alleged discrimination, 29 C.F.R. 1630.2(m) still permits (indeed, requires) dismissal. In light of the Supreme Court’s rejection of after-acquired evidence as a bar to employment discrimination claims in other contexts, action must be taken to eradicate this ADA escape clause. Although the EEOC advocates abandoning its regulation in favor of the ADA’s less stringent standard in certain circumstances, its proposed method usurps the applicable burden-shifting framework and sets the stage for prima facie overload on the plaintiff.
This Note proposes a more straightforward alternative approach: legislative action should be taken to enable reversion to the ADA’s singular essential functions standard in instances where a plaintiff’s failure to satisfy job-related requirements (1) is discovered only after the alleged discriminatory employment action, and (2) constitutes the sole flaw in the prima facie case
Southern Harm: Analyzing the Criminal Enforcement of Environmental Law in the Southern United States, 1983-2019
Get PDFWhen violations of environmental laws involve significant harm or culpable conduct, the application of criminal enforcement tools is required. Yet, our understanding of how environmental laws have been criminally enforced historically in the Southern United States remains poor. Our goal is to analyze historical charging and sentencing patterns and show the broader themes that emerge in environmental crime prosecutions over time in the region. Through content analysis of all 2,588 criminal prosecutions resulting from U.S. EPA criminal investigations, 1983–2019, we select all 799 prosecutions occurring in the Southern United States. Results show that 44% of prosecutions focus on water pollution, 19% on hazardous waste, 17% air pollution, and about 10% state-level violations. Total penalties assessed to all defendants at sentencing exceeded $1.43 billion in monetary penalties and about 2,750 years’ probation and 866 years’ incarceration. We conclude with forward-facing solutions towards improving environmental criminal enforcement outcomes including enhanced community policing, greater public salience for enforcement activities, and enhanced resources
Enhancing the Weather: Governance of Weather Modification Activities of the United States
Get PDFIn the context of climate change, weather modification by cloud seeding, and in particular, precipitation enhancement techniques, has gained a renewed attention from governments. In the United States, several states run weather modification programs to secure freshwater resources and increase both crop and hydroelectricity production. Weather modification techniques were developed post–World War II, and so were the legal arrangements that govern them. Since then, weather modification law has undergone little to no reform. California and Texas are two active users of cloud-seeding technologies but employ very different governance frameworks. This Article assesses the effectiveness of weather modification governance in these two states and argues that reforms are needed to align weather modification legal regimes to principles of environmental governance
Judging Patents
Get PDFPatent litigation is regarded as the “neurosurgery of litigation.” To adjudicate these cases, judges must grasp complex technology underlying the claims at issue, notwithstanding the fact that many judges lack relevant science or technology backgrounds. This problem is compounded by the fact that judges generally lack access to neutral expertise, forcing them to rely upon party-hired experts for tutorials. By contrast, several European patent courts utilize technically qualified judges who work side by side with their legally trained counterparts to decide patent cases. The integration of technical expertise into the judiciary improves the speed of litigation, provides the court with unbiased information, and likely increases the accuracy of the judges’ claim construction. This Article examines the role of technical expertise in patent litigation and discusses obstacles to U.S. district courts obtaining assistance. It then looks at the use of technically qualified judges in Germany and Switzerland, as well as in the European Union’s proposed Unified Patent Court, and it discusses advantages and disadvantages of their use. The Article finally proposes increasing technical expertise in the U.S. judiciary by utilizing technically trained judges or staff. It further suggests streamlining all U.S. patent litigation into a group of urban district courts, which could employ neutral technical experts
George R. R. Martin\u27s Faith Militant in Modern America: The Establishment Clause and a State\u27s Ability to Delegate Policing Powers to Private Police Forces Operated by Religious Institutions
Get PDFSince the very founding of the United States, the complex relationship between government and religion has troubled and concerned lawmakers. The Establishment Clause of the First Amendment to the United States Constitution was one of the first attempts to help define and restrain the government\u27s role in that nexus. Thomas Jefferson, in a letter praising the Establishment Clause, famously wrote that the clause buil[t] a wall of separation between Church [and] State. However, the extent of the protections that the Establishment Clause was intended to provide is unclear, and judges as well as legal scholars have struggled with interpreting the clause for years. In a 2019 case discussing Establishment Clause jurisprudence, Justice Samuel Alito stated: The Establishment Clause of the First Amendment provides that \u27Congress shall make no law respecting an establishment of religion.\u27 While the concept of a formally established church is straightforward, pinning down the meaning of a \u27law respecting an establishment of religion\u27 has proved to be a vexing problem. In one, of the first cases attempting to clarify the limitations of the Establishment Clause, Everson v. Board of Education, the United States Supreme Court asserted: The \u27establishment of religion\u27 clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs , for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.
While Everson helped establish a baseline notion of what the Establishment Clause meant to the courts, it did not give a clear answer for moving forward. Rather, it has been necessary to develop tests and standards to help with case-by-case interpretations of the Establishment Clause as new challenges arise.
When considering Establishment Clause issues, courts are often required to examine government actions or delegations of power. One significant power that a government typically holds is the power to protect and police its citizens. Despite the importance of police powers to both state and federal government, policing in the United States has not been immune to the growing trend of privatizing government responsibilities. While the privatization of government functions in general has raised some concerns, the specific delegation of police powers has definitely been accompanied by periods of controversy and hesitation. While police force privatization continues to grow, concerns remain over how such a serious power and responsibility held by the government can be effectively and appropriately delegated to private organizations.
In fact, constitutional concerns over the Establishment Clause and the delegation of police powers came to an intersection in a recent Alabama state law. In a bill signed into law in June of 2019, the Alabama state legislature allowed the Briarwood Presbyterian Church, categorized as a megachurch, and its academic campus to create and maintain a police force. The bill was drafted in response to the church\u27s request, which was originally presented to the Alabama state legislature several years earlier, but failed to garner the support necessary for approval twice. In the original request, officials from Briarwood indicated that although they had private security in the form of off-duty police officers from neighboring police departments, the recent increase in school and church shootings led them to believe that actual church police officers were necessary for safety and security. Despite the failure of the church\u27s initial requests, its latest attempt was successful, and the Briarwood organizations, as well as a second private Christian school, now have the ability to create and maintain a private police force of trained and licensed officers.
This new Alabama law creates a relationship between a religious organization and a traditionally governmental power that certainly raises the potential for Establishment Clause questions. The law generates two separate issues that concern Establishment Clause doctrine. First, would a police department established and maintained by a church violate the Establishment Clause? The second, and potentially more nuanced, question is: would a police department established and maintained by a religious academy violate the Establishment Clause? In order to answer both questions, this Note first briefly examines the history surrounding the Establishment Clause. Next, it considers changing trends in who holds police powers. Additionally, this Note touches on how courts have come to analyze Establishment Clause issues and the appropriate standards to apply. Finally, it shows through analysis of the recently passed Alabama law that the Establishment Clause should bar Alabama from delegating police powers to the Briarwood Presbyterian Church, Briarwood Christian School, and Madison Academy
Too Little, Too Late: Congress\u27s Attempt to Regulate Forever Chemicals Through Military Appropriations
Get PDFPer- and polyfluoroalkyl substances, shortened to “PFAS,” are a broad class of approximately 4,000 to 6,000 industrial chemicals characterized by a carbon chain saturated with fluorine molecules. This structure, dominated by carbon-fluorine bonds, is one of the most stable known chemical structures—and it is this stability that lies at the core of both the usefulness and the greatest issues surrounding PFAS. They are generally non-reactive except at tailored “active sites” and they never break down naturally—leading to the nickname “forever chemicals.” The persistence of their structures creates a plethora of desirable characteristics: PFAS are grease-resistant, waterproof, fireproof, stain-proof, and chemically inert. They can be used to put out fires, or cause grease to bead and run off a shirt, or to manufacture waterproof boots. They are ideal for a wide variety of industries, including cosmetics, firefighting, food packaging, inks, oil production, mining, and textiles. PFAS have been used to make numerous well-known products such as Teflon, Scotch Gard, and Gore-Tex. This stability also creates a variety of undesirable characteristics. PFAS persist in the environment long after introduction stops, they have been found to be extremely mobile in water, environmentally persistent, and bio-accumulative. They have been found in surface and drinking water throughout the United States, are known to travel through groundwater systems, and can accumulate in people’s blood, where they cause a variety of detrimental health effects.
The Center for Disease Control (“CDC”) has found four PFAS in the bloodserum of nearly all people tested for in the Fourth National Report on Human Exposure to Environmental Chemicals indicating widespread exposure by Americans.
While several specific PFAS—perfluorooctanesulfonic acid (“PFOS”), perfluorononanoic acid (“PFNA”), and perfluorooctanoic acid (“PFOA”)— have recently surfaced in the public and regulatory consciousness, the vast majority of the class remains unstudied and unregulated. Out of the thousands of compounds, robust studies have been done on only around twelve. Out of which, there is reliable toxicology data for a few. There is a widely accepted consensus in scientific literature that exposure to PFAS leads to “adverse human health effects” as noted by the Environmental Protection Agency (“EPA”).
Through decades of use, compounded by chemical persistence, PFAS have been found throughout the environment in water, sediment, soil, waste, compost, plants, animals, and humans.
This Note will analyze some of the budding regulatory regimes for PFAS at the state and federal level. It will explore how PFAS-relevant articles and riders passed in the 2020 National Defense Authorization Act (“NDAA”) will change the current PFAS regime, and how proposed, but unsuccessful parts of the Act could, and should be implemented. The NDAA broached new ground by requiring the Department of Defense (“DOD”) to regulate PFAS as if it were a hazardous substance under a plethora of environmental laws including the Clean Air Act (“CAA”), the Safe Drinking Water Act (“SDWA”), the Resource Conservation and Recovery Act (“RCRA”), the Toxic Substance Control Act (“TSCA”), and the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). It also funds information gathering about the chemicals and sets a federal definition for PFAS. Throughout the bill, Congress creates requirements for the DOD to act as if PFAS are listed hazardous substances but stops short of explicitly requiring the substances to be listed by the EPA—a necessary condition for triggering significant portions of toxic substance law. Facially the 2020 NDAA sets different standards of protection based on military affiliation and potentially triggers CERCLA liability through an ambiguous article for two PFAS: PFOA and PFOS.24
This Note will focus on exploring each of these issues in more depth and will argue that in line with the purpose of CERCLA and the wording of specific sections in the NDAA, that when Congress explicitly intends to unleash CERCLA it must be available to all parties and not be a sword reserved to the DOD. The Note will finish with policy and legal recommendations for addressing PFAS contamination
The Evolving Technology-Augmented Courtroom Before, During, and After the Pandemic
Get PDFEven before the COVID-19 Pandemic, technology was changing the nature of America’s courtrooms. Access to case management and e-filing data and documents coupled with electronic display of information and evidence at trial, remote appearances, electronic court records, and assistive technology for those with disabilities defined the technology-augmented trial courtroom. With the advent of the Pandemic and the need for social distancing, numerous courts moved to remote appearances, virtual hearings, and even virtual trials. This Article reviews the nature of technology-augmented courtrooms and discusses virtual hearings and trials at length, reviewing legality, technology, human factors, and public acceptance, and concludes that virtual hearings will continue after the Pandemic
A Directed Trust Approach to Intergenerational Solidarity in American Environmental Law and Policy: A Modest Proposal
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The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently
Get PDFThis Article delves into the life and work of Judge [Florence] Allen to provide insight to the contributions and jurisprudence of the first woman judge. For history questions what difference putting a woman on the bench might have made. Part I explores Allen’s early influences on her intellectual development grounded in her progressive and politically active family, and her close network of female professional friends. Part II discusses her pivotal work with the women’s suffrage movement, working with the national organizations in New York and leading the legal and political efforts in Ohio. This proactive commitment to gender justice, however, would not survive her ascension to the bench. Once on the court, few cases raised issues of women’s rights, and in those that did, Allen offered only neutral support. Instead, her initial entrée to the judicial profession on the common pleas court focused on judicial management, legal process, and being tough on crime, while supportive of defendant’s rights. Part III traces these cases, highlighting her notoriety as a judge against mafia and corrupt lawyers and judges. Part IV then analyzes Allen’s jurisprudence from her decade on the state supreme court, following the wide variety of cases before her and tracking her developing reputation as a moderate, but politically inconsistent judge. Part V explores Allen’s decisions from her twenty-five years on the federal court of appeals, reconciling her reputation as a Roosevelt liberal with her moderate and bipartisan decisions. The final section of the Article then analyzes Allen’s judicial career, tracing her failed nominations to the U.S. Supreme Court and evaluating her limited legacy to the profession. Her once zealous advocacy of gender justice fizzled into simple polite encouragement of women in the legal profession. Overall, this story reveals the jurisprudence of the first woman judge, crafted carefully to reflect a moderate judge, fitting within the male-centric norms of the profession, and discarding any promise of women’s advocacy on the bench