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Cook Martin Poulson, P.C. v. Daniel G. Smith
Full text linkReply Brief of Appellant /= / \u3e On appeal from the Second Judicial Court, Weber County, /= / \u3e Honorable Cristina Ortega, District Court No. 22090374
Mobility and Power in Temp Work
No full textLabor mobility is an underdiscussed determinant of temp worker power. Drawing on original interviews with professional and blue-collar workers who work as and alongside temps, this Article shows how businesses use staffing agencies to restrict the labor mobility of contingent workers. Staffing agencies limit worker mobility by imposing user- and worker-side contractual restraints while misrepresenting themselves to temp workers as their sole employer. They also exploit state-imposed mobility limitations by recruiting foreign nationals and people leaving incarceration and channeling them into their most precarious work. This enables clients to dismantle internal labor markets and to fill staffing shortages without raising the wages of permanent employees. Used this way, staffing agencies can magnify gender, racial, and economic inequality, drive down workplace standards, and trap vulnerable workers in low-wage, dangerous work.
Centering labor mobility in temp work has important doctrinal and practical payoffs. Temp worker mobility is often concerted in ways that are protected by the National Labor Relations Act and protected from staffing agency misrepresentations by consumer protection laws. Improving work standards where contingent work is common will require removing unnecessary state-imposed mobility limitations that trap vulnerable workers in precarious work. Collaborative workforce development programs, finally, can mitigate the harmful effects of staffing agencies in these sectors by improving access to training and direct hiring across the perm-temp divide
Wither, Religious Liberty
Full text linkDuring the oft-deemed Constitutional Revolution of 1937, the U.S. Supreme Court effected a significant sea-change in its substantive due process liberty analysis. In West Coast Hotel v. Parrish, the Court held that the Due Process Clause’s liberty provision does not protect absolute freedom of contract, signaling the demise of the Lochner era. Almost a century later, the current Supreme Court’s supermajority bloc is now infamous for its own seismic shift in liberty analysis. This Court’s incontrovertible Constitutional Revolution of 2022 was not limited to only substantive due process, which the Court shifted with its decision in Dobbs v. Jackson Women’s Health Organization. It also redefined religious liberty in Kennedy v. Bremerton School District through an erroneous deviation from stare decisis and seventy-five years of Madisonian-originalist school case law.
This Article analyzes how the current Court has degraded constitutional liberty in public schools by interpreting the Establishment Clause through a constricted historical lens aligned with the legislative prayer exception interpretive modality. The net result of this degradation has been a meaningful and significant infliction of harm on the Constitution, religion, and the American people. This jurisprudential retrograde slide into a narrow historicism in contravention of the core meaning and purposes of the First Amendment is swiftly becoming the watermark of the current Court. The interpretive misstep of Kennedy is gaining momentum, too, being implemented through anti-Madisonian, unconstitutional religious exercises in public schools, like public school chaplains and state-led prayer. Consequently, America should and must take alarm at this substantial jurisprudential shift and its repercussions. Without such alarm, the ultimate legacy of the Roberts Court will be the withering, if not outright elimination, of religious liberty in public schools
Papering Justices
Full text linkSupreme Court reform is a lively topic of discussion and debate, with scholars, commentators, and politicians debating a variety of proposed Court reforms, such as term limits, additional Justices, and jurisdiction stripping. This Article adds a new idea to the mix: papering Justices. Several states permit each side to a dispute to file one motion to automatically disqualify the judge overseeing their case. These requests are to be granted automatically without any showing of facts, hearings, or further briefing. This is known as “papering” the judge. Drawing from these practices, I propose that each side to a dispute before the Supreme Court get one opportunity to challenge and automatically disqualify one Justice from participating in the case.
I argue that this approach of “papering Justices” is likely constitutional, and, therefore, preferable to other reforms that likely require constitutional amendments. I survey potential benefits of papering Justices, including the potential greater institutional consensus, for disqualifications to serve as an outlet for concerns over Justices’ misconduct, and the benefits the reform may have for transparency and power dynamics.
Papering Justices isn’t without its potential drawbacks, however. I address these drawbacks and unintended consequences, including the question of whether papering Justices would make any meaningful difference to case outcomes, concerns over rule of law and the precedential value of four-Justice opinions, and the possibility of party reluctance to paper Justices. While some of these drawbacks may raise genuine concerns for the reform, I highlight how many of these arguments against papering Justices reflect on current practices. Even if papering Justices doesn’t take hold in the immediate future, debating the policy sheds much-needed light on the practices, doctrine, and assumptions undergirding modern Supreme Court proceedings that are themselves worthy of critical reexamination
The Mansion That Disney Built: Revitalizing Antitrust Enforcement in the Film Industry
No full textThe Paramount Decrees, for over sixty years, barred the major film studios from anticompetitive practices like vertical integration and block-booking. The Department of Justice’s decision to sunset the Decrees in 2020 came prematurely, with the movie industry today rocked by major mergers, the advent of streaming, the pandemic, lessened output due to industry strikes, and changing consumer tastes. True, the industry has changed since 1948, but those very changes call for regulatory intervention to avoid repeating the problems of the past.
For example, Disney’s recent merger and acquisition activity, together with the dominance of its in-house streaming service Disney+, is not just aggressive—it is anticompetitive in violation of antitrust law. Disney is not alone, with Warner Bros. and Paramount following suit. This behavior has already led to down-the-line effects on consumers, both in financial terms and in fewer, less creative options at the movie theater.
This Note discusses the Department of Justice’s past approach to antitrust violations in the film industry through the Paramount Decrees, and why those Decrees were prematurely repealed. I analyze how Disney’s and other studios’ machinations have combined to reduce competition in the industry, and how the COVID-19 pandemic and the rise of streaming have played into industry changes. And, finally, I discuss practical solutions for regulation, especially new consent decrees, and how that might be realistically possible in the current presidential administration or afterwards
Agreeing to Disagree: Abortion Jurisprudence in Jewish and Islamic Law
Full text linkThis Article challenges the prevailing perception that religious people and religious legal traditions are anti-abortion. While this may be true within certain conservative Christian perspectives, this perception is an inaccurate representation of Jewish and Muslim Americans and their respective legal traditions. Both the Jewish and Islamic legal traditions offer a range of nuanced positions on abortion. Furthermore, diverse opinions of Jewish and Islamic abortion jurisprudence inform a variety of topics salient to the current legal debate in the United States. This range of opinions includes strict limitations on abortion, circumstantial legality, and general permissibility. Scholars from both traditions engaged in lengthy debates (spanning millennia) on the topic, developing rich legal frameworks regarding abortion. While they disagreed on the specific circumstances and timing for permissible abortions, they acknowledged the validity of differing viewpoints.
Unlike the current American legal framework wherein the legality of abortion is dependent on geographic location, Jewish and Islamic scholars created legal frameworks that allowed for individuals to choose among a range of authoritative opinions. Namely, because Jewish and Muslim scholars did not reach any unanimity of opinion on the legality of abortion, they acknowledged that on questions related to the protection of potential life no single opinion controls. Based on this approach, Jewish and Islamic law provide for a wide range of opinion, all held to be legitimate and authoritative, allowing for choice among the range of recognized legal positions. It is noteworthy that Jewish and Islamic jurisprudence have distinct perspectives on personhood and life as compared to the U.S. Supreme Court’s opinion in Dobbs v. Jackson Women\u27s Health Organization. For instance, within the first forty days after conception Jewish law refers to the embryo as “mere water,” and Islamic law refers to it as a “mixed drop,” both designations indicating that the embryo falls short of legal human life. This Article is the first to put Jewish and Islamic abortion jurisprudence into conversation, highlighting their remarkable similarities in the permissibility of pregnancy termination and requirements for legal human life. The Article also aims to provide guidance for Jewish and Muslim Americans bringing First Amendment abortion claims. More generally, to the extent that abortion rights discourse is deeply influenced by religion in the United States, accounting for Jewish and Islamic traditions begins to provide a more inclusive accounting beyond the hegemony of conservative Christianity