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Pay-for-Play(ers): Missouri’s Recent NIL Amendment Is a Solid Blueprint for Federal NIL Regulation
Get PDFThe issues facing the national name, image, and likeness (“NIL”) debate came to a head on January 17, 2023. On that day, Jaden Rashada—the No. 27 rated high school football recruit in the country—decommitted from Florida when a $13 million NIL deal failed to materialize as promised. The story prompted questions about how schools handle NIL initiatives, the amounts of money thrown at collegiate athletes, and the business model at large for college athletics. It also reveals the challenges states face as they attempt to develop regulatory frameworks for NIL
Revisiting Rosenbloom: Can A Return to the “Matter of Public Concern” Standard in Defamation Cases Quiet Sullivan’s Skeptics?
Get PDFAs a vocal minority increasingly airs their displeasure with the actual malice rule the U.S. Supreme Court established in New York Times v. Sullivan, media defense attorneys find themselves searching for way to pushback against the possible erosion of a key First Amendment protection for free speech. This article calls for a reconsideration of the “matter of public concern” standard that a plurality of the Court promulgated in Rosenbloom v. Metromedia. The article outlines the chief concerns brought by those who wish to reconsider the requirement that public officials and public figures prove reckless disregard for the truth to recover in defamation cases. Upon closer inspection, many of these concerns reflect a frustration with increasing criticism of public officials as well as procedural changes in addition to the actual malice standard that have made it more difficult for litigants to successfully sue for defamation. It argues the Rosenbloom standard strikes the proper balance between the protection for individual reputation and the ability to engage in meaningful public deliberation in a democratic society
The Right to Remain Silent. . . Sometimes: Why § 1983 Claims for Miranda Violations Are Necessary to Fifth Amendment Protection
No full textThe police arrive at your workplace and ask to speak with you. Feeling embarrassed and confused, you agree to accompany them to an isolated room to answer questions. As you pass by the concerned looks and accusatory whispers of your co-workers, you wonder to yourself, “what did I do?” Once in the room, the feeling of helplessness becomes insurmountable. The officers have blocked the exit and begin to vehemently accuse you of a crime. Although you adamantly deny any involvement in or knowledge of the crime, the officers seem prepared to keep you in the room until you make a statement. Without ever being informed that you have the right to remain silent or the right to an attorney, you begin to talk. As you walk back through the office, this time in handcuffs, it dawns on you: you just confessed to a crime you did not commit
Fishy Class Certification: A Packaged Tuna Antitrust Case and a Shift in Class Certification Standards
Get PDFClass certification confers a fearsome power on plaintiffs. Organizing a group of otherwise disparate potential claimants through a class action produces a mighty concentration of power that plaintiffs can wield against defendants. This power is exerted on defendants in the form of “hydraulic pressure” to settle, shifting focus from litigation to settlement. The risk involved with one jury standing between a defendant and “potentially ruinous liability” often proves to be intolerable for corporate defendants. The in terrorem nature of class actions means that just by obtaining class certification, plaintiffs achieve a major victory. This notion is borne out by empirical results, with one study that spanned nine years finding that, once certified, classes “almost always settled.
“The sword has not yet fallen”: Is Administrative Guidance Jeopardizing Constitutional Rights?
Get PDFThe Office of Fair Housing and Equal Opportunity (“FHEO”) has a duty to investigate sex-based discrimination in housing. In accordance with recent Supreme Court precedent—which held that Title VII’s prohibition on “sex” discrimination necessarily includes discrimination on the basis of gender identity and sexual orientation—FHEO broadened its definition of sex-based discrimination in an internal memorandum published February 11, 2021. This memorandum directed officers to investigate discrimination in housing based on gender identity and sexual orientation. The change unnerved a private Christian college, College of the Ozarks, located in Missouri. Fearing that this internal memorandum threatened its ability to place students in dorms based on their biological sex, the school sued the U.S. Department of Housing and Urban Development (“HUD”) and the Biden administration, claiming its constitutional rights were abridged. The district court found, and the Eighth Circuit affirmed, that College of the Ozarks lacked standing to bring the suit against the defendants
Legislative Update
Get PDFThe Legislative Update exists to inform the reader of various state and federal laws passed during the 2021-2022 legislative sessions. More specifically, the statutes discussed below relate to alternative dispute resolution (“ADR”) in its many forms. This is an annual update compiled and written by the Journal of Dispute Resolution’s Associate Members and edited by the Associate Editor-in-Chief. This year represented a wide mix of laws passed—some related to health and safety in a post-pandemic world; others posed solutions to problems relevant before the COVID-19 pandemic. Usually, the Legislative Update is limited exclusively to state legislation. We decided to include federal given the substantial impact the bills would have on arbitration and dispute resolution more broadly
A MEDIATOR AND A BOT WALK INTO A BAR …
Get PDFThis post presents ChatGPT’s decent response to a question about the main models of mediation (or at least much better than what most of my students would have written)
Long-Term Fixes for Short-Term Leases: The Unsettled World of Airbnb Regulation
Get PDFAirbnb and the sharing economy are becoming a huge part of the United States and the world economy. The rise of Airbnb, however, has caused strife as jurisdictions seek to regulate and moderate the side effects of having Airbnb rentals in their communities. There is no consensus about how to accomplish this, though there are four main approaches that have surfaced: the Outlawing Model, the Anti-Local Model, the Taxation Model, and the Restriction Model. Each one presents its own strengths and weaknesses. This article seeks to analyze the development of Airbnb regulation through these different approaches and to try and find a solution to what model a city should use to regulate Airbnb. It concludes that the best method is a mix of the Regulation and Taxation Models. This mix of styles allows a city to address societal effects of Airbnb’s growth while also creating a cooperative environment that will help gain valuable tax revenue for a city