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Interpreting State Statutes in Federal Court
Get PDFThis Article addresses a problem that potentially arises whenever a federal court encounters a state statute. When interpreting the state statute, should the federal court use the state’s methods of statutory interpretation—the state’s canons of construction, its rules about the use of legislative history, and the like—or should the court instead use federal methods of statutory interpretation? The question is interesting as a matter of theory, and it is practically significant because different jurisdictions have somewhat different interpretive approaches. In addressing itself to this problem, the Article makes two contributions. First, it shows, as a normative matter, that federal courts should generally use state methods, though there should be exceptions in situations in which using state methods would impair federal interests or depart from the state’s own understanding of its methodology’s scope. Second, the Article shows, through a systematic review, that federal courts are mostly applying state interpretive approaches today, a conclusion that runs contrary to the views of other commentators
Nomos, Narrative, and Nephi: Legal Interpretation in the Book of Mormon
Get PDFThe Book of Mormon helped launch one of America’s most successful religions, and millions around the world accept it as scripture. It is thus one of the more influential books to have been published in the United States. Ironically, precisely because of its role in the founding of Mormonism, the text of the Book of Mormon has often been ignored. Recently, however, the Book of Mormon has begun to attract the attention of scholars whose interest in the text goes beyond either religious devotion or the academic study of Mormonism. Rather, they look to the text as a literary creation of interest in its own right. This article brings this new approach into dialogue with the influential legal theory of Robert Cover. In so doing, it breaks new ground in the study of law and literature and shows how a close reading of the Book of Mormon text reveals a subtle debate about the nature of rule following that intersects with contemporary discussions in legal theory. These narratives illustrate an important feature of what we might call the phenomenology of legal experience, namely the way in which law carries within itself—rightly or wrongly—claims to transcendence
Supreme Court Deals Blow to Minority Voting Rights
No full textJonathan Macey, a professor at Yale Law School, discusses the trial of former Goldman Sachs banker Roger Ng over his alleged role in a scheme to loot billions from the Malaysian fund known as 1MDB. Rebecca Green, a professor and co-director of the Election Law Program at William & Mary Law School, discusses the Supreme Court dealing a blow to minority voting rights. June Grasso hosts
Withholding Injunctions in Copyright Cases: Impacts of eBay
Get PDFBefore the Supreme Court’s 2006 decision in eBay Inc. v. MercExchange, L.L.C., which ruled that courts should exercise equitable discretion when considering whether to issue permanent injunctions in patent infringement cases, courts routinely granted injunctions in copyright cases when plaintiffs proved that defendants had infringed or had likely infringed copyrights. Such findings triggered presumptions of irreparable harm, which were almost never rebutted. Only rarely would courts consider a balancing of hardships or effects of injunctions on public interests.
In the first several years after eBay, commentators reported that eBay had had little impact on the availability of injunctive relief in copyright cases. However, after a key Second Circuit ruling in 2010 concluded that eBay requires plaintiffs to prove all four factors and that eBay had overturned presumptions of irreparable harm, courts have dutifully followed the dictates of eBay and have more frequently denied injunctions in four types of cases: (1) when copyright owners failed to offer persuasive evidence of irreparable harm and/or inadequacy of legal remedies, (2) when a balance of hardships favored defendants, (3) when public interests would be better served by denying the requested injunctions, and (4) when the plaintiff was seeking to vindicate non-copyright interests. While injunctions are still quite common in simple piracy cases, eBay has radically changed the injunctive relief calculus for copyright plaintiffs.
Although numerous private law scholars have criticized eBay for its departures from traditional principles of equity, this Article explains why the post-eBay copyright rulings comport with those principles. It concludes that the eBay four-factor test has had, by and large, salutary effects on the exercise of equitable discretion in considering injunctions in copyright infringement cases. eBay notwithstanding, there are numerous reasons why courts in copyright cases continue to be reluctant to grant damage-only awards. After eBay, courts have eschewed categorical pro-injunction rules and induced them to carefully tailor copyright infringement remedies
Franchisees, Consumers, and Employees: Choice and Arbitration
Get PDFCommentators and lawmakers have called attention to the rising frequency of contractual arbitration as a non-negotiable condition of many relationships. Indeed, it is a rare individual who is not subject to at least one pre-dispute, binding arbitration agreement.
This Article studies common concerns associated with binding, pre-dispute arbitration agreements and evaluates their use in consumer-vendor, employee-employer, and franchisee-franchisor relationships. Having introduced concepts relevant throughout the Article, the Article in Part I studies contractual arbitration as a form of alternative dispute resolution for transactional disputes between consumers and vendors. It examines industry self-regulation, due process, consumer salience, and forum accessibility including online dispute resolution, among other matters. Part II evaluates concerns about unfairness toward the less powerful party in employment arbitration, including judicial safeguards against unconscionability and the proposed Forced Arbitration Injustice Repeal Act (the FAIR Act), while Part III critically examines bargaining power disparities between franchisees and franchisors.
Based on a comprehensive review of available data and literature, this Article finds that, while the most charitable interpretations by arbitration proponents are untenable, some measured but broadly supportive arguments for contractual arbitration can be persuasive. Although unchecked bargaining power disparities are rightfully concerning and should be addressed, contractual arbitration can nonetheless play a useful role in relational contracts
The Future of College Sports After Alston: Reforming the NCAA via Conditional Antitrust Immunity
Get PDFIn June 2021, a unanimous U.S. Supreme Court issued its eagerly anticipated decision in National Collegiate Athletic Association v. Alston, ruling for the first time that NCAA rules governing student-athlete eligibility are subject to full scrutiny under federal antitrust law. Although the immediate impact of the Alston decision was rather modest—merely requiring the NCAA to allow its schools to compete by offering prospective players education-related benefits such as laptop computers and stipends for future graduate-level study—the Court hinted that it was prepared to extend the logic of this ruling much further, calling into question the legality of the NCAA’s entire model of “amateur” intercollegiate athletics. As a result, many suspect that it is only a matter of time before the judiciary requires the NCAA to introduce some form of “pay-for-play” to college sports.
This setback for the NCAA coincided with another monumental change to the college sports landscape in the summer of 2021. Within days of its decisive loss at the Supreme Court, the NCAA—for the first time—decided to allow student-athletes to retain their collegiate eligibility despite having monetized their so-called “name, image, and likeness” (NIL) rights by signing endorsement contracts with third-party companies. The association did not do so willingly, however, but only after its hand was forced by the twenty-seven different states that had enacted legislation prohibiting universities within their jurisdiction from denying their college athletes this right.
In response to these events—and the Supreme Court’s admonishment in particular—the NCAA and its membership began to rethink the association’s supervisory role over intercollegiate athletics. Most notably, the NCAA recently ratified a significant overhaul of its organizational constitution in January 2022. This has set the stage for a meaningful decentralization of the industry, with increased decision-making authority likely to be delegated back to individual universities and conferences.
Although such a response to the events of 2021 is more than understandable given the association’s potential legal liability post- Alston, the NCAA’s restructuring nevertheless threatens to exacerbate several undesirable trends in intercollegiate athletics. Indeed, the uncommon industrial organization of U.S. intercollegiate athletics has created atypical economic incentives that have already resulted in remarkably elevated levels of deficit spending, a high degree of competitive imbalance on the playing field, and insufficient protection of student-athletes’ education and medical well-being. Unfortunately, because the college sports industry faces an unusual legal impediment that will hinder its ability to successfully adjust to increased commercialization and competition between schools—namely, an inability to collectively bargain with its players on an industry-wide basis—the coming decentralization is likely to only further exacerbate these problems.
Therefore, this Article asserts that Congress should intervene to help chart the course for the future of U.S. intercollegiate athletics. Specifically, this article makes the case for granting the NCAA and its member institutions a limited and conditional antitrust exemption, proposing two alternative models that would give the industry the power to regulate itself while simultaneously imposing meaningful reforms on the NCAA to ensure that its governance model better advances the interests of its players in the future