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How Tom Brady Saved Baseball: A New Understanding of Union Decertification in Professional Sports Lockouts
Full text linkLabor negotiations in professional sports have always been held at the crossroads of labor law and antitrust law. Players are bound by collective bargaining agreements that are governed by labor law but must negotiate these agreements with multi-owner collectives that typically engage in anti-competitive conduct: namely, locking out players during labor disputes. Furthermore, the non-statutory labor exemption has prevented players from using antitrust remedies to combat these employer actions. Players’ unions have fought back against owners in recent years by pursuing the unorthodox counter-strategy of formally decertifying as a union in order to file antitrust litigation. However, the 2011 ruling by the Eighth Circuit in Brady v. National Football League diminished the value of decertification as a negotiating tool and legal strategy. By 2022, decertification, which had been utilized by players’ unions in the last three sports lockouts, was entirely off the table. During the owner-imposed MLB lockout, the MLBPA remained at the bargaining table to negotiate with owners without decertifying to file an antitrust lawsuit, a return to the pre-2011 status quo.
This Note analyzes how the MLBPA’s strategy in the 2022 lockout suggests that sports unions should avoid decertification and strictly pursue labor law remedies during owner-imposed lockouts. Although remedies under the NLRA are more modest than antitrust remedies, they are less risky and more likely to be successful. This Note examines the historical precedent that exempted professional sports from antitrust laws during labor negotiations, assesses the proposed solution of union decertification, and analyzes how Brady v. National Football League created a deterrent to decertification that is too strong for unions to overcome. This Note proposes that the MLBPA’s best course of action to develop leverage over league owners was not to decertify, but to file an unfair labor practice charge with the NLRB for an injunction and monetary remedies. Lastly, this Note concludes that the MLBPA’s negotiation strategy should be viewed as guidance for other sports unions in future lockouts. This Note highlights the impact of Brady v. National Football League on sports unions’ decision to decertify, ensuring that these unions can fight ownership on the right battleground: at the bargaining table, rather than in the courtroom
Tax Collectors for Fair Admissions: Advancing State-Level Tax Incentives to Curb Legacy Admissions
Full text linkPart I of this Note will contextualize the practice of legacy admissions, describe its inherent unfairness and deleterious effects, and explain why—notwithstanding those concerns—some universities still employ the practice in their admissions processes. With that background, Part II of this Note will explain why fiscal incentives are the most appropriate mechanism to disincentivize legacy admissions practices. Part III will then evaluate the flawed federal fiscal proposals to curb legacy admissions, and Part IV will argue that state-level solutions should be preferred to federal ones to respect the values of federalism and promote the most narrowly-crafted, individualized, and state-specific solutions.
This abstract has been taken from the author\u27s introduction
Every Piece of Jewelry Tells a Story: Modern Techniques for Conflict-Free Gold and Diamonds
Full text linkThis Article seeks to reimagine ways to prevent the circulation of conflict-affected gold and diamonds in the international jewelry market. This Article first examines the existing regulatory framework, and then applies that analysis to public survey data and conversations with industry leaders to create a set of informed proposals using behavioral analytics and modern solutions. This Article proposes increased use of two new technologies, blockchain and lab-creation, as well as a fundamental restructuring of the regulatory framework, including higher standards for gold regulation and an international council specific to jewelry regulation
Reproductive Innovation and Reproductive Exceptionalism: How Private Health Insurance Coverage of Fertility Treatment Complements Hostile Governmental Action and Expands Access to Assisted Reproduction in the United States
Full text linkThe use of fertility treatment and assisted reproductive technology (ART) in the United States and globally is increasing over time. As of April 2023, the World Health Organization estimates that approximately one in six individuals have faced infertility globally. Fertility treatment includes the use of drugs to stimulate egg production, in vitro fertilization (IVF), and, for some, the use of gestational surrogacy to aid in childbirth. Debates have abounded and continue to abound in federal legislatures, state legislatures, and society more broadly about the morality of abortion, contraception, and assisted reproduction, as well as whether governments, public insurers, and private insurers should facilitate access to these medical treatments. This chapter explains how private health insurance, like public health insurance, can be a catalyst for innovation and societal acceptance. Insurance coverage can be an indication of medically accepted procedures and products, as well as a proxy for ethical views, social views, and employer views on appropriate health care. This is particularly the case in the realm of reproduction, especially in relation to assisted reproduction and abortion.
This abstract has been taken from the author\u27s introduction
AI v. MQD: Navigating New Regulatory Challenges in the Life Sciences
Full text linkThis Note proceeds in four parts. Part I introduces AI as an emerging technology in the life sciences, the FDA’s inherited regulatory regime, and challenges under the MQD [major questions doctrine]. Part II explores how hypervigilant regulation obstructs innovation and exposes agencies to judicial challenges. Part III offers solutions to safely and effectively navigate the major questions landscape within a framework that fosters AI innovation. This Note proposes a solution that conceptually balances growth in the life sciences with the statutory elements required for a safe and effective regulatory scheme.
This abstract has been taken from the author\u27s introduction
Burying the Icepick: Why and How the United States Should End Its Dispute with Canada Over the Legal Status of the Northwest Passage
Full text linkThis Note argues that the United States should work with Canada to pass an amendment to the United Nations Convention on the Law of the Sea (UNCLOS) that allows Canada to legally claim the Northwest Passage as internal waters. While the United States has long championed freedom of navigation, important U.S. security, environmental, and diplomatic interests weigh in favor of a legal regime that allows Canada to exercise complete control over the Northwest Passage. However, UNCLOS does not currently support Canada’s claim. Thus, the best means of accomplishing this objective is for the United States to work with Canada to pass an Arctic amendment to UNCLOS that would allow Canada to draw straight baselines around the Canadian Arctic.
Part I discusses relevant international maritime law and delves into the legal positions of the United States and Canada on the status of the Northwest Passage. Part II examines the competing U.S. interests at stake in the legal status of the Passage. Part III explores potential legal solutions that would satisfy the United States’ most pressing interests.
This abstract has been taken from the author\u27s introduction
Executive Watch: Introduction
Full text linkFirst installment in a regular feature on the Trump administration and the First Amendment