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Be Careful What You Wish For: Impeachment in the Trump Era
Get PDFHaving now gotten some distance and perspective on the head-spinning Trump presidency, what have we learned about the way presidential impeachments are likely to work in the future
Symposium: The Two Impeachments of Donald J. Trump Foreward: Requiem for Impeachment?
Get PDFImpeachment was inserted into the Constitution of the United States as a tool of national self-preservation. Although its most common use has been as a quotidian house-cleaning device for dispensing with corrupt or egregiously unsuitable federal judges otherwise unfireable due to life tenure, the American framers conceived impeachment’s real and essential function to be the ejection and permanent electoral disqualification of any president who proved grievously unfit or exhibited a dangerous disposition to autocracy
OSHA and Public Health in an Emergency and a Culture War
Get PDFThe approval of COVID-19 vaccinations for working age Americans in early 2021 offered a welcome release from oppressive non-vaccination safety measures. Group activities including normal employment operations became possible with a greatly reduced risk of serious illness and death. However, escape from the virus and non-vaccination measures was limited by widespread resistance to vaccination. OSHA became one of a handful of federal government offices that adopted rules to motivate more people to accept vaccination as the best way to protect themselves, protect their families, and escape the oppression of non-vaccination measures. OSHA, which regulates private sector “occupational” health, issued an “emergency” rule that applied only to private sector employers with at least 100 employees. The rule did not “mandate” vaccinations. However, it strongly motivated employers to adopt their own vaccination requirements in order to avoid the alternative: burdensome non-vaccination requirements
Food, Freedom, Fairness, and the Family Farm
Get PDFThe concept of the “family farm” holds powerful sway within the American narrative, embodying both nostalgia for an imagined past and anxiety for a future perceived to be under threat. Since the founding of the United States, this cultural ideal has been invoked in support of a rosy vision of agrarian democracy while obscuring the ways in which the U.S. Department of Agriculture’s codified definition of “family farm” has unfairly aggregated advantages for the benefit of a particular kind of family (nuclear) and farmer (white, male, straight). At the same time, consumers are misled by an under-interrogated conflation of family farming with “good” farming practices. There exists a pervasive fear among Americans that the family farm is at risk of disappearing, and that something must be done to save it. This Essay analyzes the history of family farms in the United States and contends that reclaiming, not rescuing, is what needs to be done. As an alternative to preserving an institution whose benefits have always been constrained by gender, race, and wealth, we propose instead re-orienting efforts toward three concepts rooted in the family farm ideal but which we believe to possess greater transformative potential: fairness—the distribution of benefits along the agrifood chain to ensure adequate compensation and access; self-determination—the ability for communities to make their own decisions within the food system; and “good” farming—the specific practices that could lead to a more just, humane, and sustainable food system
Valuing the Vulnerable: A Proposed Approach to Cyclical Competency
Get PDFThe competency evaluation system in the United States is in crisis. The criminal justice system has long recognized that a criminal defendant has a right to a fair trial, and being competent to stand trial is a necessary component of that right. Mental illness is increasingly prevalent in our inmate population, and while mental illness and incompetence are not synonymous, the two are often correlated. Unsurprisingly then, competency evaluation requests have skyrocketed in recent years. But importantly, competency is not static. Cycles of compensation and decompensation may require a defendant to go through the competency evaluation system multiple times before they are ever brought to trial. Defendants presenting with this cyclical competency are not uncommon, and Jonathan Mitchell is a prime example. Mitchell’s competency to stand trial has been evaluated at least three different times at three different facilities located all around the United States. When a defendant is deemed incompetent to stand trial, the government may involuntarily medicate that defendant for the purpose of rendering defendant competent to stand trial when the interests of the government outweigh the defendant’s. While involuntarily medicating a criminal defendant is – surprisingly – nothing new in the United States, this case marks the first time that a competent defendant has been so ordered
The Future of Arbitration Law?
Get PDFThis Article provides an in-depth statistical analysis of statutory interpretation of the Supreme Court’s arbitration docket. This paper follows my work in Standing on Its Own Shoulders: The Supreme Court’s Statutory Interpretation of the Federal Arbitration Act. By looking at how the Court interprets the Federal Arbitration Act (FAA), this paper makes predictions about how arbitration cases might be resolved in the future. This paper considers the reliance on and use of fourteen tools of statutory interpretation over the Court’s 52 cases and 114 separate opinions interpreting the FAA through the end of 2021. By considering four crucial sub-categories of cases, this paper draws trends and comparisons across different arbitration legal theories. Specifically, this paper analyzes class arbitration cases, preemption cases, arbitrability cases, and cases involving a potential conflict between the FAA and other federal law. This paper draws four primary conclusions. First, the class action cases will likely continue to build off of themselves, by relying on past precedent and the arbitration canon. Second, the Court will likely continue to give the FAA broad preemptive power given not only its broad support across the Court but also because of an interesting “Thomas Effect” in which Justice Thomas votes against his own prior opinions to maintain a conservative majority. Third, the arbitrability cases stand as a microcosm of the entire arbitration docket, even though they do not contain any strong trends unique to such cases. Finally, this paper draws the conclusion that the Court treats the FAA as a super-statute, giving it gravitational pull over othe
Is Arbitration for Olympic Athletes Arbitrary?
Get PDFIn December of 2021, Professional Russian Figure Skater Kamila Valieva completed a doping control test during a Russian National Figure Skating Championship. On February 7, 2022, a World Anti-Doping Agency (WADA) accredited laboratory detected the presence of a banned substance from Kamila’s December 2021 test. The Russian Anti-Doping Agency, (RUSADA) which is in charge of the application of WADA, first implemented a provisional suspension on Kamila, prohibiting her from competing in the 2022 Olympic Winter Games. The RUSADA’s Disciplinary Anti-Doping Committee (DADC) then moved to lift this provisional suspension. The International Olympic committee, the WADA and the International Skating Union appealed this decision to lift the provisional suspension. Because this appeal was brought during the period of the 2022 Olympic Winter Games, the Court of Arbitration for Sports’ Ad Hoc Division obtained jurisdiction of the case. Ultimately the Ad Hoc Division decided that the lifted suspension would remain in place and Kamila would compete in the women’s Single Skating event during the Winter Games on Feb 15, 2022
Improved Writing From Reading Other Writers
Get PDFIn 1954, a 12-year-old junior high school student wrote to Justice Felix Frankfurter seeking advice about how to prepare to become a lawyer. “The best way to prepare for the law,” Frankfurter answered, “is to come to the study of law as a well-read person.” Reading other writers, he explained, enables future lawyers to “acquire the capacity to use the English language on paper and in speech and with the habits of clear thinking.”
Justice Frankfurter offered his young correspondent sound advice about the intimate link among reading, writing, and lawyering. Reading works from other writers with an eye toward developing one’s own writing skills, however, should continue even after receiving a law degree and entering the legal profession. A lawyer’s quest for improved writing skills remains a lifelong pursuit
STUDY OF ODR IN FAMILY CASES WITH POSITIVE RESULTS
Get PDFThis post summarizes the results of a study finding that parties who used ODR for child custody, parenting time, or child support matters were more likely to reach agreement and to rate their experience more highly than those who declined to use ODR