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Fulfilling the pledge : securing industrial democracy for American workers in a digital economy
No full textMillions of non-union workers want unionization, but our current labor-management relations law conspires to deny them meaningful opportunities to secure collective workplace representation. The resulting low rates of collective bargaining impose economic, political, and social costs on us all. In Fulfilling the Pledge, Roger Hartley addresses the plight of American workers, who face a grim, uncertain future, as the digital workplace reshapes the hierarchical post–World War II industrial relations system that once gave workers a voice. Through empirical evidence and the lens of law and policy, Hartley examines what industrial sociologists call the chronic “representation gap” and clarifies how a wide-ranging movement could build a vocal constituency for the congressional enactment of labor law reform.
The pledge made in the 1935 National Labor Relations Act to encourage establishment of industrial democracy—where workers possess a voice in their places of work—remains unfulfilled. Speaking to policymakers, scholars, historians, and the average citizen, Fulfilling the Pledge makes a compelling case for collective workplace representation that serves the greater good, even as American labor relations law continues to undermine collective bargaining by workers and becomes an increasingly significant political and social issue.https://scholarship.law.edu/fac_books/1148/thumbnail.jp
Explaining the Comprehensive Immigration Reform Stalemate in Congress
Full text linkHistorically, congressional policy goals on immigration have vacillated from open to restrictive as various micro and macro level factors have changed both inside and outside the Beltway. While Congress has been subjected to some immigration lobbies over time, it has largely been isolated from a general public opinion on immigration policy until fairly recently. Specifically, while Congress was successful at passing a variety of immigration policies through 1990 without much regard to public opinion, it has since failed even amid bipartisan congressional and presidential support. This article will offer a number of theories in order to explain why Congress has been unable to pass immigration reform at a time when there was significant bipartisan support for it among policy elites. It begins with a legislative history of immigration policy, explains the current immigration system and categories of admission into the United States, and then offers an explanation for the failure of immigration policy. It also teases a subsequent article that offers a policy prescription to overcome the challenges to reform outlined in this article
Chaney Step Zero: Judicial Review of FEC Deadlock Dismissals
Full text linkPartisan polarization has infected our politics at levels not seen in decades. But what happens when the contamination spreads to the institutions responsible for regulating the political process itself? At the Federal Election Commission, nothing. Under the FEC’s governing statute, the Federal Election Campaign Act, any serious action the agency undertakes must be supported by a bipartisan supermajority of commissioners. When the six commissioners fail to reach such consensus—or “deadlock”—due to partisanship or otherwise, nothing happens at all: no investigations, no regulations, no enforcement of federal campaign finance laws. For the first few decades of the FEC’s existence, these deadlocks were mostly harmless, if still frustrating. Thanks to FECA, even inaction by the FEC was subject to a critical safeguard: judicial review. But since 2018, the D.C. Circuit has found Heckler v. Chaney to bar review of deadlocks in which the commissioners voting against an enforcement action invoke the agency’s prosecutorial discretion. Consequently, a non-majority bloc of commissioners can refuse to support any or all enforcement proceedings—even for entirely partisan purposes—with little to no judicial oversight, simply by referencing the agency’s discretion in their reasoning.This Article attempts to resolve this stalemate by proposing a framework to guide judicial review of these deadlock dismissals. Based on the Chevron “Step Zero” of United States v. Mead Corp. and its foundation in legal process principles of institutional competency, this two-part framework limits Chaney’s preclusion of review to agency actions that carry the “force of law.” Because FEC deadlock dismissals represent a failure of the Commission to speak authoritatively as a whole, they do not carry the force of law, and thus are reviewable. For these and other agency actions that fail this “Chaney Step Zero,” the framework also provides a less absolute but still deferential inquiry to evaluate the persuasiveness of the agency’s invocation of its discretion—a prosecutorial-discretion analogue of Skidmore v. Swift. While this framework is designed to combat the gridlock plaguing the FEC, its principled and organized approach to Chaney’s application has the potential to guide judicial review of discretionary action throughout the administrative state
The Illusory Coverage Doctrine is Not a Doctrine at All (But It Should Be)
Full text linkThe Illusory Coverage Doctrine, if it ever becomes a true legal doctrine, has the potential to be an incredibly useful tool in insurance law. But courts around the country take very different approaches to the doctrine, ranging from one end of the spectrum—a hard-nosed “pro-insurer” stance where coverage is not illusory so long as a policy provides any coverage—to the other—a muscular “pro-policyholder” public policy approach that requires coverage even if some other exclusion might have prevented coverage under the applicable policy. And along the spectrum are various other iterations, contributing to the complete lack of certainty or consistency about the Illusory Coverage Doctrine or its application in insurance law.
In 2019, the American Law Institute published the Restatement of the Law of Liability Insurance to bring consistency and certainty to the field of liability insurance law. But the Restatement makes no mention of the Illusory Coverage Doctrine. This article explores the inconsistent and often problematic applications of the doctrine. It also proposes that the Restatement be revised to address the Illusory Coverage Doctrine in a way that benefits both policyholders and insurers
Navigating the Intersection of Regulation and Vulnerability: The Evolving Landscape of Cybersecurity in Investment Management and the Imperative for Comprehensive Safeguards
Full text linkDecedents\u27 Estates: Cases and Materials (5th ed.)
No full textThe fifth edition of this casebook continues the use of fact-driven judicial decisions to illustrate the expanding list of non-probate devices, execution and revocation of a valid Last Will and Testament, and statutory intestate succession. States continue to adopt self-settled asset protection trust legislation, trust protectors, dynasty trusts, and choice of situs accommodations. Socially responsible investing is offered for discussion, as are the merits of the Rule Against Perpetuities. Readiness for practice is illustrated with planning for incapacity cases and hypotheticals, including long-term housing payment options, federal and state entitlement programs, and the impact of diminished capacity and undue influence on arbitration and the validity of wealth transfer instruments. There are numerous excerpts from practitioners, providing insight into how the law works in practice, and problems are offered with corresponding pertinent feedback. Changes to the Uniform Probate Code and the Uniform Parentage Act are included, as are innovations referencing artificial intelligence, the Electronic Wills Act, the Electronic Estate Planning Documents Act, and the Cohabitants Economic Remedies Act. Federal and state statutes are introduced, specifically newly enacted ones seeking to curb rising incidents of elder financial abuse, as well as describing the interplay of taxes and wealth transfer. The fifth edition continues to include material on assisted reproduction, including surrogacy and parenthood, illustrating de facto parenthood and posthumous conception. The casebook also addresses the impact of nonmarital cohabitation on inheritance claims upon the death of a cohabiting partner; also, provisions of the Premarital and Marital Agreements Act are included, illustrated with a pertinent case. Included, too, are references to the newly promulgated Directed Trust Act, the Trust Decanting Act, the Uniform Fiduciary Income and Principal Act, the Powers of Appointment Act, and the Revised Uniform Fiduciary Access to Digital Assets Act.https://scholarship.law.edu/fac_books/1150/thumbnail.jp
A Case for Clarity: Indication of Collateral
Full text linkThis article reviews different critiques of scholars and practitioners on the correctness of the Seventh and First Circuit Court of Appeals opinions in First Midwest Bank v. Reinbold, 938 F. 3d. 866, 100 U.C.C. Rep. Serv. 2d (7th Cir. 2019) cert. denied, 140 S. Ct. 1125, 206 L. Ed. 2d 189 (2020) and Financial Oversight & Management Board for Puerto Rico v. Andalusian Global Designate Activity Co. 914 F. 3d 694 (1st Cir. 2019), cert. denied, 140 S. Ct. 47, 205 L. Ed. 2d 29 (2019). These two decisions address the question as to whether an incorporation by reference to an unattached security agreement satisfies the “indication of collateral” requirement for a financing statement under section 9-502(a)(3) of Article 9 of the Uniform Commercial Code. Considering the fundamental importance of filing a financing statement to perfect a security interest under Article 9 of the Code, the conflicts and ambiguities raised in these commentaries warrant a clarification by the Commission on Uniform Commercial Laws. This article suggests that such a clarification can be effectively addressed through the issuance of a Commentary by the Commission of Uniform Laws’ Permanent Editorial Board for the UCC
Anything You Say (or Like, Repost, and Quote) Can Be Used Against You
Full text linkSocial media allows users to exchange thoughts and ideas without saying a single word. Whether a user “likes” “reposts” or “quotes” third-party content, a user publicly interacts with content authored by someone else with the click of a button. Is this online activity more akin to a user making a statement, adopting a third-party’s statement, or not making a statement at all? Does it matter? Only certain statements can be used against you at trial. Federal Rule of Evidence (“Federal Rule”) 802(a) provides that “hearsay” is an out-of-court statement offered for the truth of the matter asserted. According to Federal Rule 802, hearsay is generally not admissible at trial unless an exception applies. Despite the existence of hearsay exceptions, Federal Rule 801 also carves out hearsay exemptions which are unaffected by the rule against hearsay. One of these exemptions is Federal Rule 801(d)(2)(A) which deems statements of a party-opponent offered against it at trial admissible. Another exemption exists for “tacit admissions” under Federal Rule 801(d)(2)(B) for statements made by a third-party offered against a party-opponent if the party-opponent manifested it adopted the third-party statement or believes it to be true. Thus, if online activity is considered a statement or a tacit admission it can be used against you at trial.
This Comment analyzes how the Federal Rules apply to online activity–“likes,” “reposts,” and “quotes”–and explores whether this activity constitutes a statement or tacit admission. Although “quotes” may satisfy the requirements of Federal Rule 801(d)(2)(B) in certain contexts, “likes” and “reposts” alone are not sufficient to warrant treatment as tacit admissions. Further, courts should treat “likes” and “reposts” as non-statements per se because the context surrounding either action is unavailable and the meaning of a “like” or “repost” is ambiguous. This treatment of “likes” and “reposts” as non-statements will avoid inconsistent evidentiary rulings and streamline the trial process
Ten Tips for Living and Lawyering Authentically
No full textCatholic Law\u27s Center for Law and the Human Person hosted the final installment of its 2023-2024 Faith-in-Action lecture series on Tuesday, March 19. The series, which brings Catholic lawyers to discuss the integration of the Catholic faith and legal practice, concluded with Catholic University’s deputy general counsel, Jennie Bradley Licther, who gave a talk on “Ten Tips for Living and Lawyering Authentically.