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Bargaining in the Shadow of the EFAA
Full text linkLabor unions are having something of a moment. In the past few years, high profile unionization efforts like those at Starbucks and successful strikes like SAGAFTRA have generated headlines. Even as labor activists celebrate these wins, American unions face ongoing obstacles. Union membership continues to decrease, and union participation remains at an all-time low. And now courts, perhaps unwittingly, are adding to their woes. In one example, particularly relevant here, courts have overlooked the distinction between arbitration agreements contained in collective bargaining agreements and arbitration agreements contained in contracts between employers and at-will employees. The result has been to entwine the Federal Arbitration Act (FAA) and the Labor Management Relation Act (LMRA) in ways that create ambiguity. This, in turn, has led to potentially unexpected outcomes and has interfered with union-management efforts to contract regarding preferred dispute resolution processes
Federalism and the Blue Sky Laws: Reevaluating U.S. Securities Regulation
Full text linkSecurities regulation in the United States is an important example of federalism-in-action, given the overlapping jurisdiction of state and federal authorities over securities-related matters. However, the existing system has long been criticized as both overly burdensome and ineffective at achieving its core aims. In particular, the extensive network of state securities laws, often referred to as the “blue sky” laws, has been the subject of, and has exacerbated, many of these critiques. Tensions between federal and state activities in this area are ongoing and subject to numerous reform proposals. Yet, recent proposals to refashion the U.S. securities regulatory scheme have ultimately been unworkable and unrealistic, limited to proposals for either complete federal control of securities regulation or near-exclusive state authority in this same area. These proposals overlook key benefits built directly into the existing system
The Second Bite at the Apple Watch Through the United States Customs and Border Protection: A Further Whittling of Patent Rights Post-eBay
Full text linkUnderlying the patent system is a bargain between the general public and patent owners. In exchange for the limited-time right of the patentee to exclude others from making, using, or selling their patented invention or process, the public receives the benefit of both the disclosure of new and useful inventions and processes and the increased incentive to innovate. The Supreme Court’s eBay v. MercExchange decision, however, fundamentally changed this bargain by removing the presumption of injunctive relief for patent owners upon a finding of infringement in Article III courts. The Court replaced this presumption with a four-factor test, making it more difficult for patent owners to exclude infringers from their claimed invention or process. The eBay decision led many patent owners to the United States International Trade Commission (“ITC”), where the four-factor test did not apply
The Screen Is Going To Ask You A Couple Questions: Analyzing No Tax On Tips and How it Will Change the Hospitality and Service Industries
Full text linkThe Coronavirus Pandemic, point-of-sale technology, and financial instability has pushed demand for tips to all-time highs as tipped workers struggle to make ends meet. In response, Democrats and Republicans have proposed the “No Tax On Tips” bill, which would create a limitless deduction for tip income, to provide tipped workers with financial relief. With the bill targeting such a unique type of income, the potential results of this bill are just as polarizing. This paper looks at the origin of America’s tipping culture, how tips impacted labor and tax legislation, how the bill’s tip deduction would expose holes in labor and tax law, and how the bill would drastically impact the economy and taxpayer behavior. While “No Tax On Tips” could provide some financial relief, it is more likely the bill would cause issues regarding tax avoidance and worker classification
The Devil Wears Dupes: Legal Implications of “Dupe Culture” in the Fashion Industry and How Trademark Law Should Adapt
Full text linkThe proliferation of dupes in the fashion industry—affordable imitations of high-end designs—has created a complex intersection of intellectual property challenges, ethical concerns, and consumer behavior shifts. While dupes democratize fashion by providing low-cost access to high-end aesthetics, they undermine brand integrity, dilute designer creativity, and exacerbate labor and environmental issues tied to fast fashion. Current trademark law, centered on the Lanham Act, insufficiently addresses these challenges, particularly when dupes avoid direct counterfeiting and exploit legal gray areas. This article critiques the limitations of existing protections, evaluates alternative legal reforms, including updates to anti-dilution provisions and the use of blockchain technology, and explores the broader implications of dupe culture for designers, consumers, and the marketplace. It argues for a balanced framework that integrates strengthened anti-dilution laws with proactive blockchain authentication, aiming to protect originality while fostering market transparency and accessibility. Ultimately, this article underscores the need for nuanced solutions that preserve the creative spirit of fashion while addressing modern challenges
Custom’s Pervasive Role in Law and the Boundaries of Positivism
Full text linkCustom is law’s foundation, modulator, and occasional antithesis. This Article explores that relationship, starting with varying insights from some of the few legal philosophers who have examined the custom/law dynamic. The heart of this Article provides examples showing custom’s many influences on the law, set in five functional areas: origin, application, interstitial, rule-source, and oppositional. Although the custom/law interplay spans human behavior, these examples come from law practice where custom is exposed. Many are routine, some are significant, and all show our reliance on behaviors and norms that are not positive law. The conclusion addresses but does not resolve some of the many questions inherent in this complexity. In a positive law democracy, should a court ever be obligated to rely on a free-standing custom in the absence of positive law? What if a long-standing custom is contrary to a desuetudinal statute or precedent? To the extent courts ought to heed custom in any setting, how is it assessed? The topic is vast and this Article’s point necessarily modest, merely illustrating the phenomenon of custom’s pervasive role in law
The Settlement Privacy-Transparency Matrix: Moving Beyond the Dichotomous Mindset in the Settlement Debate
No full textThe philosopher Arthur Schopenhauer once wrote, “The first forty years of life give us the text; the next thirty supply the commentary on it.” Forty years after Owen Fiss’s seminal article “Against Settlement,” it is time to reimagine how we approach the settlement debate beyond traditional dichotomies. Just as Schopenhauer recognized that time and experience allow us to better understand our past, forty years of grappling with the settlement debate have given us the perspective to see its limitations, and now with emerging technologies, new possibilities. The ‘text’ of the debate—its dichotomous framing and distributive solutions—has shaped four decades of myopic policy and practice. Now it is time for our ‘commentary’— a more nuanced understanding that moves beyond either/or thinking and toward integrative solutions