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Imposing a Daily Burden on Thousands of Innocent Citizens: The Supreme Court Unnecessarily Limited Motorists\u27 Fourth Amendment Rights in Kansas v. Glover
Get PDFThis Article analyzes Kansas v. Glover, in which the Supreme Court ruled that an officer could stop a vehicle owned by a person having a revoked license on the assumption that the owner was currently driving the vehicle. This work examines the concerns created by Glover’s ruling. This Article asserts that, in creating its new rule enabling police to stop a motorist without first confirming his or her identity, the Court based its holding on the existence of two facts, thus effectively changing its traditional “totality of the circumstances” analysis for reasonable suspicion to a categorical rule. Further, Glover’s reasoning eroded Terry v. Ohio’s reasonable suspicion standard and discounted the motorist’s interests against seizures of the person, thus undermining Fourth Amendment rights. Finally, the Court, in adding a new element of “when the officer lacks information negating an inference” to Terry’s analysis, shifted the burden of proof for assessing the lawfulness of the seizure to the motorist. Glover therefore potentially imposes a daily burden on “thousands of innocent citizens” who happen to be borrowing a car
Whose Progress?
Get PDFArticle I, Section 8, Clause 8 of the U.S. Constitution provides that Congress shall have power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” These words have been the subject of countless books and scholarly articles. Professor Silbey’s engaging contribution [in Against Progress: Intellectual Property Law and Fundamental Values in the Internet Age] to the conversation focuses on one word—progress—and what it should mean as we think about intellectual property law’s motivations and justifications in the twenty-first century.
But even if we reimagine the goals of intellectual property to be not about (or not simply about) creative incentives but about basic fundamental values such as dignity, privacy, and distributive justice, as Professor Silbey quite appropriately encourages us to do, we must inevitably struggle with what it means to achieve progress in a legal regime where parties might very easily find themselves on either side of a dispute. Thus, the question subsequent to “What is intellectual property law for?” must be “Who is intellectual property law for?”
This abstract has been adapted from the article text
\u27Cheap Speech\u27 and SCOTUS on Speech
No full textRichard Hasen, a Professor of Law and Political Science at the University of California, Irvine, discusses his book, Cheap Speech: How Disinformation Poisons Our Politics and How to Cure It.
Timothy Zick, a Professor of Law at William & Mary Law School, discusses the Supreme Court ruling that Boston violated the Constitution by refusing to fly a Christian civic group’s flag at city hall while raising the banners of other organizations
(Re)Empowering the Community: A Case Study of Namibia\u27s Legal Evolution of Wildlife Governance
Get PDFThis Article will introduce the theoretical foundation of the CBC [Community-Based Conservation] approach. It will then use Namibia as a case study to both: (a) illustrate the sort of historical, political, and economic drivers that motivate the adoption of CBC across the global south, and (b) highlight the existence of potential structural weaknesses present in even the most lauded CBC programs. Finally, this Article will present some of the common theoretical and results-based criticisms of CBC and discuss broader lessons that can be drawn from the Namibian experience. The analyses in this Article draw from academic literature, Namibia’s statutes and Constitution, and the Stefan Carpenter’s original field research in four conservancies (CBC areas) located in Namibia’s northwestern Kunene region.
This abstract has been adapted from the author\u27s introduction
Protecting Terrapins with TEDs in Virginia: Lessons from Other States
Get PDFThis paper highlights case studies about other states\u27 efforts to require or incentivize the use of TEDs [terrapin excluder devices] and recommends policies for Virginia to adopt that have proven successful elsewhere. First, it outlines the threats to terrapins at large, as well as the threat posed by commercial and recreational crabbing, specifically. Next, it details the efforts that other East Coast states have made to combat the problem, including policies that require or incentivize the use of TEDs on crab pots, and discusses the regulatory framework currently in place in Virginia. Finally, this paper concludes by analyzing the approaches taken by other states and recommending specific policies that Virginia can pursue to reduce the deaths terrapins face from crab pots.
This abstract has been adapted from the authors\u27 introduction
Welcome and Presentation: Expanding Renewable Energy Tax Credits to Tribal Governments: How Current Legislative Proposals Will Benefit Tribes and Their Members in Their Continued Efforts to Address Climate Change
No full textPreempting the States and Protecting the Charities: A Case for Nonprofit-Exempting Federal Action in Consumer Data Privacy
Get PDFThis Note argues that Congress should use its Commerce Clause power to pass a consumer data privacy measure that (1) preempts state law and (2) explicitly exempts 501(c)(3) organizations from compliance. Such preemptive action with a narrow 501(c)(3) carve-out would avoid the potential harm of exempting too broad a group of nonprofit entities while ensuring charitable organizations’ continued existence, would be more protective of both the individual privacy right and 501(c)(3) existence than merely adjusting the revenue dollar threshold at which entities must comply, and would properly balance the individual right to control personal data with the societal good served by the existence of 501(c)(3) charitable organizations.
Part I of this Note elaborates on the relationship between 501(c)(3) organizations and personal data and expands on the compliance difficulties faced by (and the collective societal good of) (c)(3) groups. Part II reviews the four major existing privacy law measures—the GDPR, the CCPA, the CPA, and the VCDPA—and analyzes the scope of each measure’s reach as it pertains to 501(c)(3) charities. Part III of this Note makes the case for federal preemptory action in a sweeping consumer privacy rights measure that trumps the existing patchwork of state law and exempts 501(c)(3) organizations from compliance. Finally, Part IV of this Note considers and responds to potential Tenth Amendment and state expertise counterarguments that could be raised in opposition to federal preemptory action in this arena.
This abstract has been taken from the author\u27s introduction
The Dobbs Effect: Abortion Rights in the Rear-View Mirror and the Civil Rights Crisis that Lies Ahead
Get PDFOn June 24, 2022, seven weeks after the first-ever leak of a draft opinion, the United States Supreme Court circulated its decision in Dobbs v. Jackson Women’s Health Organization, defying stare decisis, overruling fifty years of precedent, and shattering the hopes of millions of Americans, who wished the leaked opinion was a fiction that would never come to be.
As the leaked draft forewarned, Roe v. Wadeis no longer the law of the land. No longer is a woman’s right to terminate a pregnancy—to exercise bodily autonomy and be free to control the trajectory of her life—protected as a fundamental right guaranteed by the Due Process Clause of the Fourteenth Amendment of the Federal Constitution. This sea change in the Court’s Fourteenth Amendment substantive due process jurisprudence raises serious questions about the viability of stare decisis and the future of those fundamental civil rights that are not explicitly named in the Constitution.
With abortion rights now in the country’s rear-view mirror, this Essay examines the Court’s historic opinion, which calls into question the legitimacy of other substantive due process implied rights, and exposes the majority’s “history and tradition” justification for abolishing a constitutional right as mere pretext. It also offers insight into the legal, practical, and societal complications that lie ahead. Of course, no one has a crystal ball; however, as Justices Breyer, Sotomayor, and Kagan said in their dissent, “no one should be confident that this majority is done with its work.
Don\u27t Abolish Employee Noncompete Agreements
Get PDFFor over three centuries, Anglo-American courts have assessed employee noncompete agreements under a Rule of Reason. Despite long-standing precedent, some now advocate banning all such agreements. These advocates contend that employers use superior bargaining power to impose such contracts of adhesion, preventing employees from selling their labor to the highest bidder and reducing wages. Abolitionists also contend that such agreements cannot produce cognizable benefits and that employers could achieve any benefits via less restrictive alternatives without limiting employee autonomy.
This Article critiques the Abolitionist position. Arguments for banning noncompete agreements echo hostile critiques of other nonstandard contracts during antitrust law\u27s inhospitality era. These critiques induced courts and agencies to condemn various nonstandard agreements. Employee noncompete agreements escaped condemnation because they were governed by state contract law.
The Article recounts how Transaction Cost Economics ( TCE ) undermined these critiques. TCE demonstrated that nonstandard agreements, such as exclusive territories, could overcome market failures by preventing dealers from free riding on each other\u27s promotional efforts. TCE also concluded that such agreements were usually forms of voluntary integration, unrelated to market power. These scientific developments induced courts to abandon their hostility to nonstandard contracts, and nearly all such agreements now withstand Rule of Reason scrutiny.
TCE also undermines the case against employee noncompete agreements. Most notably, TCE predicts that most such agreements are voluntary methods of ensuring that employers capture the benefits of investing in employee training and trade secrets by deterring rival firms from free riding on such investments and bidding away employees. Application of TCE also rebuts claims that less restrictive alternatives will achieve the same objectives as noncompete agreements.
Finally, TCE undermines contentions that employee noncompete agreements injure employees by preventing them from receiving lucrative bids from competing employers. This account of harm treats hypothesized bids and resulting imagined (higher) wages as an exogenous baseline against which to measure the impact of such agreements. According to TCE, however, such bids are not exogenous. Instead, such bids often occur because noncompete agreements incentivize employers to make investments that increase employee productivity. Banning such agreements will thus reduce employee productivity, eliminating the incentive for rivals to bid for employees. In such cases, claims that noncompete agreements reduce wages invoke an illusory baseline of bids that would not occur but for the enforcement of such agreements.
Empirical evidence confirms TCE\u27s predictions. Many such agreements apparently arise in unconcentrated markets. Most are disclosed in advance, and robust enforcement induces additional employee training. Finally, employees who receive preemployment notice of such provisions earn higher wages than similarly situated employees not bound by such agreements. Thus, many such agreements appear to be voluntary means of protecting investments in employee training, improving employee productivity, and increasing gross domestic product ( GDP ).
This is not to say that all employee noncompete agreements produce significant benefits. Some employers decline to disclose such contracts until after employees join the firm. Such agreements apparently depress wages without producing benefits. Moreover, some employee noncompete agreements could raise rivals\u27 costs and enhance employers\u27 market power.
Neither potential impact justifies abolition. States or the Federal Trade Commission ( FTC or Commission ) could encourage or require pre-contractual disclosure, leaving employers and employees free to adopt provisions that increase their joint welfare. Moreover, even the inventors of raising rivals\u27 costs theory opined that most markets are not susceptible to such a strategy. Abolitionists have made no effort to establish that employee noncompete agreements usually arise in markets where such a strategy is possible. The rare prospect that parties may employ fully disclosed agreements to pursue such a strategy does not justify abolishing all employee noncompete agreements.
Indeed, banning all such agreements may have a disparate impact on small, labor-intensive firms by discouraging optimal investments in employee training. This potential impact may help explain labor union support for abolishing such agreements. Unionized firms predictably adopt capital-intensive production processes in response to collective bargaining and resulting noncompetitive wages. Laws that disadvantage nonunion, labor-intensive firms will enhance the demand for the output of unionized firms, increasing the demand for unionized labor. Banning noncompete agreements will thus sometimes boost unionized workers at the expense of their nonunion counterparts