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Cock-eyed Optimist Meets Chicken Little: Jack Balkin on the American Future
Get PDFGiven that we are close friends and the co-authors of some twenty articles and a book, Democracy and Dysfunction, it is not surprising that I think very highly of and agree with much of Jack Balkin’s new book, The Cycles of Constitutional Time. I read it in two sittings; it is a real pageturner, written with brio as Jack presents a remarkably comprehensive overview of what he discerns as various cycles in American politics (importantly including the Supreme Court and the development of constitutional doctrine) from the beginning of the new national government in 1789 to the present. It is a book to be savored and studied, particularly with regard to the interplay of his three analytically separable cycles, dealing, respectively, with the developments of the party system that structures so much of our politics; polarization; and the role played by the federal judiciary – or, more particularly, the Supreme Court – in trying to adjudicate or control some of the implications of the first two. It is also, inevitably, a book to argue with
How Stricter E-Cigarette Regulations Will Keep The Traditional Cigarette in Power
Get PDFFirst harvested for export in 1612, tobacco has remained a large, and controversial, part of the United States’ identity. In 1966, 42.6% of the American population smoked cigarettes. Currently, cigarette usage rate is around 14%, its lowest rate ever. Even with this sharp decline, cigarettes remain the number one cause of preventable deaths in the United States resulting in approximately 480,000 deaths per year. Nicotine, the active ingredient in tobacco, is an addictive drug, and many treatments exist for those attempting to quit. Recent studies have shown, however, that electronic nicotine delivery systems, more commonly known as “vapes” or “e-cigarettes”, are more effective than the other forms of commonly used cigarette cessation devices. E-cigarettes have been marked by their own controversy, however, as they have shown to be exceedingly popular among adolescents. Due to the high underage use, many states began implementing their own regulations or bans on e-cigarettes, with the federal government eventually stepping in to attempt to limit underage use. These attempts may have the consequential side-effects of leading those using e-cigarettes as a cessation device to return to using traditional cigarettes and adding a barrier to current cigarette smokers wanting to quit. To remedy this, I propose that the United States Food and Drug Administration (“FDA”) provide e-cigarettes with a specialized Over-the-Counter monograph that would allow adults access to what has shown to be an incredible cigarette cessation tool, while also limiting accessibility to minors
The Walking Dead: How the Criminal Regulation of Sodomy Survived Lawrence v. Texas
Get PDFEighteen years after the Supreme Court held in Lawrence v. Texas that a law criminalizing sodomy violated the constitutional guarantee to substantive due process, individuals are still arrested, prosecuted, convicted, and incarcerated pursuant to statutes that are the material equivalent of the one at issue in Lawrence. Though this seems both strange and unfair, it is neither unusual nor accidental. Because the constitutional order renders the judiciary a passive institution and radically fragments authority across a polycentric collection of governments, noncompliance with judicial decisions is endemic to American institutional design
One Tire, One Time: The Supreme Court of Missouri’s Expansion of Reasonable Suspicion
Get PDFAll drivers are familiar with the white “fog line” that separates the road from the shoulder. What Missouri drivers may not be familiar with is the fact that they can be pulled over any time one of their tires cross that line. This fact may surprise Missouri drivers, in part because it has only recently become the law. While fog line infractions may seem trivial on their face, the traffic stops that result from fog line infractions trigger significant constitutional repercussions
AI in International Arbitration: Need for the Human Touch
Get PDFTechnology is rapidly changing the way law is practiced. The legal profession, including arbitration, will feel the effect of technological advancements in AI and Legal Tech. In fact, the Covid-19 pandemic has already pushed arbitration to either be virtual in toto or hybrid in other cases. An exclusively physical arbitration hearing is currently the exception, rather than the norm. Admittedly this is a temporary and perhaps unsustainable situation, nevertheless the current landscape underscores that humans are replaceable
Clandestine Awards, Information Asymmetries, and Equality of Arms in Investment Arbitration
Get PDFAmong the numerous criticisms leveled at investor-state arbitration over the years, it has almost become de rigueur to point out a lack of transparency. In this arena “transparency” refers to the extent to which the public may be aware of the existence of a dispute, have access to key arbitral documents, or attend oral hearings
Shakespeare in the Courts
Get PDFThis article continues the theme of recent “Writing It Right” articles in the Journal of the Missouri Bar. These articles describe how federal and state judges today frequently accent their opinions’ substantive or procedural rulings with references to cultural markers that can resonate with the advocates, parties, and judges who comprise the opinions’ readership. The courts’ broad array of cultural references demonstrates versatility. Some of my early articles in the Journal profiled judicial opinions that referenced terminologies, rules, and traditions of baseball, football, and other sports. Together these sports’ mass audiences help define American culture.
Later my Journal articles profiled judicial references to classic television shows and movies that have held Americans’ attention for decades. Most recently, I turned along a literary path by profiling judicial references to well-known children’s stories, fairy tales, and Aesop’s Fables. This article continues along the literary path by turning to recent federal and state judicial opinions that reference plays of Shakespeare (1564-1614). Nearly 40 plays carry his authorship, and they still command attention in the United States and around the world centuries after their appearance. Many of the plays’ most famous quotes or phrases (such as the ones invoked in Sigma) remain familiar to many Americans, including advocates, parties, and judges
Ignoring Drug Trademarks
Get PDFIf you walk into a pharmacy with a prescription for Merck’s ZOCOR, which contains simvastatin, the pharmacist will probably give you a product containing simvastatin made by another company. The pharmacist will dispense a “generic” simvastatin product. State generic substitution laws, passed in the 1970s to help the government save money by switching patients to cheaper generic drugs, either permit or require this substitution. But drug brand names -- such as ZOCOR -- are trademarks. Like other trademarks, they distinguish goods in the market from others, and they signal the source of the goods. These state laws essentially treat the words as something else. As soon as generic drugs are available, state law instructs the pharmacist to read the brand name -- written by the doctor -- as an instruction to dispense a different company\u27s product. This is the opposite of how trademarks are supposed to operate. This Article examines the history of substitution and drug trademarks over the last century and a half, as well as the relationship between the two, against the backdrop of an evolving drug industry, an evolving drug regulatory framework, and improvements in regulatory science. It shows that the generic drug substitution laws are an anomaly in our legal system. Substitution at the pharmacy was illegal, and it still is otherwise illegal. The substitution laws of the 1970s created an exception in pharmacy law and broke with long-standing policy in food and drug law as well as unfair competition law. This Article also shows that the substitution laws were intended to, and did, undermine proprietary (trademark) rights. This was done to achieve savings for payers, after efforts to mandate generic prescribing failed. As the Article points out, much has changed since the 1970s. The regulatory framework has changed, regulatory science has evolved, drug research and development has evolved, the industries have changed, the healthcare finance system is utterly different, the relationship among parties in healthcare delivery has evolved, and so on. The Article therefore concludes by reconsidering (and criticizing) the exception for generic drug substitution, with the benefit of a clear understanding of the relationship between a brand drug and its generic equivalents and a clear understanding of the role for drug trademark after patents have expired. The exception prioritizes short-term cost savings over the dynamic pro-competitive benefits of a properly functioning trademark system. And although the laws are more than 40 years old, this point is important today, because hostility to drug trademarks and devotion to generic substitution laws inform scholarship and policy proposals today
Sexual Orientation and Gender Identity Discrimination Claims under the Fair Housing Act after Bostock v. Clayton County
Get PDFOn June 15, 2020, the Supreme Court handed down a landmark decision in Bostock v. Clayton County, Georgia, ruling by a vote of 6-3 that Title VII of the Civil Rights Act of 1964 protects gay, lesbian, and transgender employees from discrimination. The majority held that the statute\u27s prohibition against discrimination in employment because of ... sex necessarily applies to discrimination based on sexual orientation and transgender identity.
This decision will undoubtedly have ramifications reaching beyond the employment context because many other federal statutes contain language similar to that in Title VII. In particular, the federal Fair Housing Act (FHA), which has identical language prohibiting discrimination in housing because of . .. sex, should also now be interpreted to prohibit discrimination based on sexual orientation and gender identity. This is an obvious next step given the similar language, structure, and purpose of both statutes, and the courts\u27 long-standing tendency to use Title VII cases to guide their interpretation of the FHA. This would also be a welcome development for housing equity, considering the significant discrimination that gay, lesbian, and transgender individuals experience in housing and the dearth of legal protections in place for them.
Part I of this Article outlines the significant level of discrimination against LGBTQ individuals in the housing market. The FHA does not specify that sexual orientation and gender identity are protected characteristics, and there is an insufficient patchwork of state statutory and administrative protections. This is similar to the employment context, where Congress\u27s failure to include explicit protections for LGTBQ individuals in Title VII left the heavy-lifting to the courts, which gradually developed doctrines to read such protections back into the statute.
Part II reviews the courts\u27 evolving treatment of sexual orientation and gender identity under Title VII and the smaller number of cases following the same pattern in the FHA. In particular, those courts which upheld plaintiffs\u27 claims relied on three types of arguments: (1) the argument that LGBTQ individuals defy sex-role stereotypes, and that sex-role stereotyping constitutes discrimination based on sex, (2) a textual comparative argument, which looks in many ways like a causation analysis, and (3) a related associational argument. This Part concludes with a discussion of the Supreme Court\u27s opinion in Bostock, which relied heavily on the comparative argument.
Part III analyzes how courts use Title VII precedent for guidance in fair housing cases. It argues that the propriety of this practice will depend on whether there are any relevant differences between the employment and housing contexts. In this case, there are no significant contextual differences, and thus Bostock\u27s interpretation of because of sex should apply equally to sexual orientation and gender identity discrimination claims brought under the FHA. Indeed, as with Title VII, there is strong precedent in favor of broadly interpreting the FHA to cover claims and plaintiffs that Congress may not have originally intended to cover.
Part IV examines the possible mixed motives issue. It discusses the potential for the because of sex causation argument to implicate mixed motives. It also examines the potential for the differences between the two statutes to complicate attempts to apply Bostock to the FHA. This is not a problem, however, because Bostock\u27s reasoning does not in fact implicate mixed motives at all. Thus, there is no reason not to apply Bostock\u27s holding to the FHA