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The Constitutional Problems with Delegating Legislative Power to College Sports
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Part I of this Article discusses the current landscape of college sports, discussing why the NCAA has sought federal litigation to better control the industry and what legislative efforts are underway to potentially grant those wishes. Part II then reviews case law that defines the contours of the private non-delegation doctrine, focusing on the Amtrak litigation and National HBPA and how those two strings of cases place NCAA-related legislative efforts in constitutional peril. Part III will then closely review the currently proposed legislation that would, if passed, grant regulatory power to the NCAA or a new private entity, discussing similarities and differences in motive, structure, and the historical contexts to the regulatory schemes previously struck down for being violative of private non-delegation principles alongside basic due process rights—especially given that universities are arguably market competitors to the athletes they would regulate. Finally, the Article will conclude by discussing the impact the focused level of government oversight necessary to pass a constitutional federal bill granting legislative regulatory power to college sports, how that bill would change the NCAA and college sports more generally, and whether such changes are even worth it considering the goals and interests of the college sports industrial complex
Fusing to Combat Slavery: Third-Party Politics in the Pre-Civil War North
Full text linkThis Article examines how antislavery third parties used electoral fusion—the practice by which a candidate can appear as the nominee of multiple political parties—to mobilize antislavery political power in the 1840s and 1850s. Highlighting several striking and consequential examples of how Liberty, Free Soil, and early Republican partisans cross-nominated candidates also supported by another party, this Article sheds light on a pivotal chapter in the long and important history of this electoral tactic. The critical role electoral fusion played at key points in American political history casts further doubt on the legitimacy of contemporary state anti-fusion restrictions, whose constitutionality is currently being contested by an ever-growing series of legal challenges across the country. Given the potential for electoral fusion to facilitate cross-ideological coalitions within the confines of the American two-party system, these issues have taken on outsized importance today
The Blockbuster Amendment to CPLR 2106 Permitting Any Person to Submit an Affirmation in Lieu of an Affidavit
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Traditionally, the affidavit has been the foremost source of proof on motions in New York State courts. Effective January 1, 2024, New York Civil Practice Law and Rules (“CPLR”) 2106 was substantially amended to allow any person to submit an affirmation in lieu of an affidavit, “with the same force and effect.” This is the most significant change to the CPLR in the twenty-first century and will impact many areas of civil procedure.
As those who have already grappled with the amendment to CPLR 2106 know, there are now numerous issues relating to the legislation that will need to be addressed by the courts. This is due largely to the fact that the legislature chose not to amend any of the other sixty-two provisions in the CPLR that reference an “affidavit.” Given that the current composition of New York State’s representative bodies is not sufficiently concerned with real procedural reform, we cannot expect any responsible legislative action to be taken to remedy the problem. Therefore, application of the statute in numerous contexts will be left largely to the courts, after lawyers attempt to persuade them with their proposed interpretations.
This Article attempts to provide courts and attorneys with an analysis of the new CPLR 2106 and its interplay with several other provisions in the CPLR. The piece examines some early caselaw from the federal and state trial courts in New York, and several appellate division decisions interpreting the statute. Our focus is on the issues that judges and lawyers will most likely confront in applying and using the statute, and there are many. The examination is well worth the effort, as there is an abundance of cases in which a party’s rights have been lost, jeopardized, or compromised because of a defective affidavit or affirmation. The piece also makes recommendations regarding the legislative proces
Time Traveling with the Foreclosure Abuse Prevention Act: New York’s New Law and the Constitutionality of Retroactivity
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This Note argues that the Foreclosure Abuse Prevention Act should be interpreted to apply retroactively and that retroactivity is constitutional. Part I will survey the history of the foreclosure crisis that led to the abusive litigation tactics that made FAPA necessary. Part II will analyze the most notable provisions of FAPA which have given effect to the legislature’s intent in passing FAPA. Finally, Part III will examine the constitutionality of retroactive legislation and review the validity of arguments surrounding FAPA’s retroactivit
Lost in a Crowd: How Crowdworkers are Denied Their Rights at Work
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If asked about digital platform work, most people would immediately think about rideshare and delivery drivers. Transportation-related platforms have become so ubiquitous and enmeshed in everyday routines that “Uber” is now used as a verb, and “uberization” means the adoption of a digital platform business model. Rideshare and delivery, however, are only one part of the overall landscape of digital platform labour. In the last decade, many businesses have been shifting toward computer-intermediated methods of working. On-demand platforms have expanded to provide many kinds of location-based in person services, including tasks as diverse as home repair, beauty and cosmetic styling, and domestic cleaning services. Beyond in-person services, studies estimate that there are over one hundred and fifty million workers across the world who work on digital platforms, performing various data-related tasks completed wholly on the computer.
Computer crowdwork has in fact become a transnational business endeavour, creating a scalable on-demand workforce that provides the back-office services that power many internet sites and new technologies. Across the world, computer crowdworkers are performing microtasks in transcription and data annotation, as well as performing longer-term freelance contracts to perform many tasks, including software programming and accounting. To the end user of many websites or artificial intelligence technologies, however, such work is obscured or invisible, with human work often disguised or attributed to computers. While many of the tasks posted are done so by requesters in the EU and the United States, the work has often been offshored and carried out by workers in the Global South. More recently, crowdworkers in Kenya, Uganda, and India have been involved in piecework training of artificial intelligence (AI) large language models like ChatGPT. While work has traditionally been conceived of as a localized activity, and largely regulated on a local level, many forms of crowdwork are truly multinational enterprises.
The next section of the report sets out the connections between the previous Taken for a Ride reports with the current document, noting the differences and similarities in the analysis. The third section provides certain definitional terms as well as information about the workers within these sectors, including what we know about their location, education, gender, and disability status. Section 4 focuses on the ways in which the problems of crowdworkers are coextensive with many of the workers’ invisibility. Some of these concerns include the low rate of remuneration as well as difficult working conditions on digital platforms. Then, Section 5 turns to legislation and decisional law. While most of the court cases focus on rideshare and delivery, (at least until recently), this section describes such litigation, as well as the extent of recent legislation. Finally, the last section contains some responses to the ILO proposed standards as well as additional thoughts on where this might be heading – on unpaved roads. Given the growing importance of crowdwork, as well as the ILO’s proposed standards on decent work in the platform economy, it is important to include the millions of other non-rideshare digital platform workers in that discussion. The ILO standard’s provisions on collective rights could be strengthened through a rebuttable presumption of employment and through tailoring the protections to the needs of all platform workers. Because of the multinational nature of many of these digital labour platforms, a cooperative and coordinated approach to regulation and enforcement is imperative to the delivery of worker rights
The Collection Problem: How the Circuit Split on Pleading Standards in Securities Fraud Claims Undermines Federal Regulatory Goals
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The Great Depression is generally recognized as the greatest economic calamity in United States history. One of the Great Depression’s many causes was reckless financial speculation driven in part by financial fraud. In response to the crisis, Congress passed the 1934 Securities Exchange Act (“the Exchange Act”), which courts have long held creates a private right of action for plaintiffs who experience an economic loss due to reliance on a material misstatement surrounding the purchase or sale of a security. A prima facie claim for securities fraud under the Exchange Act requires a showing of scienter, defined as “a mental state embracing intent to deceive, manipulate, or defraud.” Securities fraud claims under the Exchange Act provide an important remedy for investors who suffer losses due to fraudulent misstatements related to securities, and they serve a central regulatory function of ensuring accurate disclosure of information in financial markets. However, they have also provided fertile ground for frivolous lawsuits that lack merit and are intended solely to coerce defendants into settling to avoid costly discovery.
In response to a proliferation of frivolous claims, Congress enacted the Private Securities Litigation Reform Act (“PSLRA”) in 1995. Among other changes, the PSLRA elevated the pleading standards for the scienter element of securities fraud claims, requiring plaintiffs to plead facts giving rise to a “strong inference” of scienter to survive a motion to dismiss. The need to plead specific facts around this state-of-mind requirement presents an interpretive puzzle when dealing with corporate defendants because corporations lack their own discrete minds and “think” only through their employees, officers, and agents. Different approaches to interpreting the PSLRA’s heightened pleading standards have created a circuit split around the degree of factual specificity required to plead scienter on the part of a corporate defendant, wherein certain courts consider the knowledge and states of mind of various corporate employees or agents in the aggregate when assessing the corporation’s state of mind, while others reject this type of aggregation. This Note will survey and evaluate the doctrinal roots of the competing approaches. Ultimately, it will argue for an extension of the Sixth Circuit’s approach, which allows courts to consider the states of mind of key decisionmakers in the aggregate in order to raise the required inference of scienter by the corporation
The Rooker-Feldman Doctrine in the Bankruptcy Context
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An unfavorable state court judgment can lead to the losing party seeking a second bite at the apple in federal court, but the Rooker-Feldman doctrine blocks second attempts with limited exceptions. The jurisdictional doctrine is derived from two United States Supreme Court cases: Rooker v. Fidelity Trust Co. and District of Columbia Court of Appeals v. Feldman, where the collective holdings stand for the principle that a state court judgment is conclusive and that the lower federal courts lack jurisdiction to review such judgments. The Supreme Court is the only federal court authorized to review state court judgments.
The Rooker-Feldman doctrine serves as a jurisdictional barrier of entry into federal courts for bankruptcy litigation. The doctrine stays narrow enough not to preclude all state court appeals to the federal judiciary but assists in precluding parties seeking to relitigate the same arguments made in state court. This article addresses key case law in the context of bankruptcy surrounding the Rooker-Feldman doctrine. Part I explains potential limitations that arise from the strong preclusive effect that Rooker-Feldman can have on state court appeals. Part II outlines the federal exemptions and provision of title 11 of the United States Code (the Bankruptcy Code ) that allow for certain matters from state court to be litigated, while also enabling Rooker-Feldman to be a beneficial tool in precluding other state court issues that should be kept out of federal court. Finally, Part III examines a Fifth Circuit decision that presents a prime example of the doctrine in action
The Deferential Asian American: Low Racial Status and the Invisibility of Asian Americans in Leadership and the American Narrative
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This Article will proceed in five parts. First, an important caveat. When the Article refers to Asian Americans, it refers to all Asian American subgroups except for South Asian Americans, because South Asian Americans are not perceived to be deferential in the same way as other Asian American subgroups. Consequently, their experience with leadership is unique among Asian Americans, and much of the analysis in this Article does not apply to them.
With that caveat, Part I will discuss the invisibility of Asian Americans generally, but particularly in leadership positions. Part II will discuss the concept of social status bias and inequality. It will explain that inequality consists of three, independent dimensions— status, economic, and political inequalities. As independent elements, a social group may achieve economic equality yet still experience social status inequality, as is the case with Asian Americans.
Part III will argue that the low racial status of Asian Americans is due to the presumption of their general incompetence. It will argue that Asian Americans are perceived to be categorically inept in virtually all domains except the STEM fields, and even in STEM, Asian Americans are perceived to have just limited, technical skills. Why? Because Asian Americans are perceived to be intellectually deficient in critical and creative thinking.
Part IV will explain that the presumption of general incompetence rooted in intellectual deficiency is based on the perception that the racial character of Asian Americans is fundamentally deferential by nature. Specifically, Asian Americans are perceived to be compliant, conformist, passive, and humble, deferential traits that make Asian Americans seem like a low status, subservient class of people.
Part V will explain how the low racial status of perceived deferential Asian Americans operates to exclude them from leadership positions. In the professional context, the deferential Asian American is perceived to be a technician by nature. Technicians are not the high status genius scientists, but the low status, dependable, but intellectually limited, lab assistant. Technicians are servants to their scientist masters. Perceived as subservient technicians whose sole duty is to assist but not lead intellectual or scientific endeavors, Asian Americans are perceived to be unequivocally unqualified for leadership. And just as technicians are invisible in the narrative of scientific inquiry because of their subservient identity, so too are Asian Americans in the American narrative of race.
The Article will conclude by briefly discussing steps that should be taken to promote equal racial status and leadership for Asian Americans