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Privatization of Employment Claims: Perhaps a Hybrid Approach Will Free American Society from the Epic Trap the Supreme Court has Sprung Without Forfeiting All Advantages of Arbitration
Get PDFMandatory individual arbitration, as a condition of employment, binds many U.S. employees after the Supreme Court’s 2018 decision in Epic Systems Corp. v. Lewis. In effect, fundamental employment protections—such as relief under current anti-discrimination statutes—are privatized. Now, only a legislative fix will break those bonds. Congress and state legislatures have ventured into the fray, though preemption problems plague the latter, and both seem fixated on either excessively narrow categories (harassment claims in employment) or politically distasteful, broad solutions (no individual arbitration allowed in employment or consumer contracts). This Article acknowledges the quandary that the Epic decision, and the Court’s longstanding obeisance to the Federal Arbitration Act (FAA), have visited upon employees and employers. The Article then considers practices in other industrialized democracies, which often feature specialized employment courts. This Article recommends a hybrid. If the United States can fashion specialized employment tribunals, perhaps without calling them that, and simultaneously offer employees an effective path to opt out of employment arbitration, then employers and those workers who want arbitration can enjoy the fruits of the FAA while other employees can pursue their claims in the fashion contemplated by the drafters of federal and state employment statutes
To Have and To Be: An International Human Right to Clean, Healthy, and Sustainable Environment
Get PDFIn July 2022, the United Nations General Assembly passed Resolution 76/300 (“the Resolution”)—affirming a human right to clean, healthy, and sustainable environment (“environmental human rights”). The Resolution essentially affirms a linkage between environmental human rights and “other rights and existing international law,” and “calls upon States, international organizations, business enterprises and other relevant stakeholders to adopt policies, to enhance international cooperation, strengthen capacity-building and continue to share good practices,” to achieve environmental human rights.
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This Article offers a glass half-full perspective on the Resolution, with the caveat that the glass could rapidly become empty unless the right is internalized into domestic legal systems and international agreements that directly or indirectly impact environmental human rights.
Specifically, this Article asserts that the Resolution is a net positive development for two reasons: 1) the historical importance of contemporary human rights, notably the Universal Declaration of Human Rights (“UDHR”), in framing the normative discourse on international law as a “universal,” rather than “sovereign,” subject matter, and 2) its potential to return international environmental discourse to a human rights–based approach initially taken in the 1970s, which is especially important as environmental problems increasingly impose transboundary environmental harms on established human rights. This Article further proposes that the efficacy of the Resolution rests on the ability of nations to not only fully implement multilateral environmental agreements under the principles of international environmental law, but also to cohesively and systematically review from a lens of human rights the defragmented approach to treaty negotiations that at once promote and negate efforts to meaningfully address environmental problems, as in the case of international trade agreements.
Further, the Article asserts that the efficacy of environmental human rights suffers the same limitation as human rights enforcement in international law and the limits of international governance structures. These limitations can be acutely felt in the case of transboundary environmental harms that impact human rights, because unlike traditional human rights cases, the remedies lie outside the purview of domestic law. Thus, in addition to reviewing the normative compatibility of existing international treaties, this Article further suggests that meaningful next steps should include the creation of systematic governance systems— including judicial mechanisms—to address cases of transboundary environmental human rights wrongs.
This abstract has been taken from the author\u27s introduction
Subordination Through Schedules
Get PDFOur jobs are not only about the work we do—they are also about when and where we do that work. For a variety of reasons, employees with disabilities often seek modifications of their employers’ policies regarding when and where work is performed. These accommodations are often necessary for the employee to remain employed. The Americans with Disabilities Act (“ADA”) requires employers to provide reasonable accommodations to employees with disabilities, and these accommodations can include schedule changes. But research demonstrates that when responding to accommodation requests under the ADA, employers are often reluctant to grant requests to modify the rules regarding when and where work is performed, seeing these rules as unalterable. If an employee sues under the ADA, courts usually side with employers, thereby not requiring the employer to provide the modification sought by the disabled employee. Given that schedule changes are the most frequently requested accommodation under the ADA, the entrenchment of these scheduling rules causes many workers with disabilities to lose their jobs or otherwise suffer harm—in short, they are subordinated through their schedules.
In conceptualizing how to solve this, the pandemic’s experience with remote work is helpful. This experience taught us that for many jobs, where work is performed isn’t that important, and that remote work can be successful. In order to replicate that experience for when work is performed (schedules, hours, shifts) I propose a universal accommodation mandate. If everyone has the right to request accommodations—especially modifications of the rules regarding when and where work is performed—we might see a replication of the COVID-19 remote work experience, but without the disastrous effects of the pandemic. More employees requesting other schedule accommodations should help employers realize that many of their rigid scheduling rules are not necessary, just like COVID-19 taught them that in-person presence is not always necessary. Only then can we end the subordination of disabled workers through their schedules
Pathways to Liberty: What Colonial, Antebellum, and Postbellum Education Can Teach Us About Today
Get PDFEducation is a critical part of nation-building. More specifically, it can also be a powerful pathway to liberty and a tool for disseminating knowledge. However, historically it has been used to subjugate and censor vulnerable groups like women, socio-economically disadvantaged persons, as well as men of color. Therefore, to avoid subordinating members of such minoritized groups and suppressing uncomfortable historical facts, advocates must continually evaluate the purpose and method of education. Such persistent monitoring can provide a basis for constructive reform of public education in the United States. Such reform must also consider changing social conditions.
Presently, for example, public education is at the center of culture wars involving issues such as censorship and the ongoing battles for access to quality education. In addition, efforts have mushroomed to prevent the teaching of comprehensive, fact-based American history and to silence discussion of marginalized groups. To effectively understand this crisis, there is a need to better understand the historical relationship between public education, representative government, and liberty.
In this fraught context, this Article excavates history and narratives important to the goal of an educated citizenry and liberated society to show that America has been here before. The Article’s overarching goals are to show the subjective practices of education in the Colonial, Antebellum, and Postbellum eras in Virginia, the birthplace of America. The Article also aims to amplify the narratives of formerly enslaved and free Black Americans who leveraged education to achieve liberty and contribute to the democratic project. Further, this Article underscores the significance of access to a quality and robust education for advancing equality and empowerment—and, ultimately, freedom
The Summary Judgment Revolution that Wasn\u27t
Get PDFThe U.S. Supreme Court decided a trilogy of cases on summary judgment in 1986. Questions remain as to how much effect these cases have had on judicial decision-making in terms of wins and losses for plaintiffs. Shifts in wins, losses, and what cases get to decisions on the merits impact access to justice. We assemble novel datasets to examine this question empirically in three areas of law that are more likely to respond to shifts in the standard for summary judgment: antitrust, securities regulation, and civil rights. We find that the Supreme Court’s decisions had a statistically significant effect in antitrust, an ambiguous effect in civil rights cases, and no effect in securities regulation. We also find that, in the trilogy’s wake, antitrust appellate cases were far more likely to cite trilogy cases— particularly the one trilogy case that was an antitrust case—than appellate cases in the other areas. This suggests that the lone trilogy case that arose in antitrust had an effect on decision making in that field, but that the trilogy had a limited effect across other substantive areas of law. This finding differs from Twombly and Iqbal where an antitrust decision ultimately reshaped the entire body of law across doctrines around motions to dismiss
There\u27s No Such Thing as Independent Creation, and It\u27s a Good Thing, Too
Get PDFIndependent creation is the foundation of U.S. copyright law. A work is only original and, thus, copyrightable to the extent that it is independently created by its author and not copied from another source. And a work can be deemed infringing only if it is not independently created. Moreover, independent creation provides the grounding for all major theoretical justifications for copyright law. Unfortunately, the doctrine cannot bear the substantial weight that has been foisted upon it. This Article argues that copyright law’s independent creation doctrine rests on a set of discarded psychological assumptions about memory, copying, and creativity. When those assumptions are replaced with contemporary accounts of how human memory influences the creative process, the independent creation doctrine becomes empirically meaningless. Independent creation, as copyright law understands it, does not exist.
Because the independent creation doctrine lacks any meaningful legitimacy, it has become a site of legal privilege and bias. Copyright law’s treatment of independent creation has favored some creators’ claims at the expense of others, privileging plaintiffs, older creators, and wealthier creators. These biases distort the law’s attempt to optimally regulate cultural production. This Article offers several proposals for addressing these concerns, from rebalancing legal doctrines to a more radical solution: the wholesale jettisoning of independent creation. Copyright law does not need the independent creation doctrine, and it would be better off without it