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Illegal Contracts and Agreements: A New Standard for Prostitution and Marijuana Agreements
Get PDFAgreements exchanging sex for money and those involving marijuana may encounter illegality defenses in court. Granting a legal remedy for breach of an agreement that exchanges seriously illegal consideration would lower the court’s public standing and endanger its legitimacy. On the other hand, the spectacle of a buyer claiming its own illegality to escape paying its seller troubles courts.
Lord Mansfield stated the illegality defense in Holman v. Johnson: “No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.” Yet he rejected the illegality defense in that case on the ground that the plaintiff’s contract to sell tea that the buyer planned to smuggle into England was complete before the crime occurred.
Difficult illegality decisions arise when the illegality is not serious, as in this Article’s sex and marijuana topics. This Article rejects fixed rules for illegality disputes and favors judicial discretion guided through standards. The standards include the seriousness of the illegality and preventing unjust enrichment leading to restitution. Applying the standards to the Article’s first example leads to potential recovery for an unpaid sex worker. The Article also approves recovery of contractual damages for many marijuana transactions that are illegal under federal law but legal under state law
Colorblind and Color Mute: Words Unspoken in U.S. Supreme Court Oral Arguments
Get PDFThe U.S. Supreme Court holds oral arguments on 70 to 80 cases each year, with fewer than a dozen most years involving issues around race or ethnicity. When the salience of race is clear, Supreme Court observers would expect to hear racial terms used in the arguments by counsel, as well as in the Justice’s questions.
Surprisingly, this research study demonstrates that is not the case. These racial terms - such as color, discriminate, minority, race, and its various related terms like racial, racially, racist, as well as combinations like race-neutral, and race-blind - only sparsely appear in oral argument transcripts of cases implicating racial issues. In one case involving racial discrimination against a black postal worker, the term “black” was used only three times in the court opinion and not at all in the oral argument.
The research methodology began with creating a list of U.S. Supreme Court cases in which issues of race, ethnicity, tribal, or national origin discrimination were raised in petitions heard in 2018–22. The specific manifestations ranged from gerrymandering and redistricting, peremptory strikes, employment discrimination, disparaging trademarks, travel bans and Deferred Action for Childhood Arrivals, as well as affirmative action.
The initial research led to three main findings: (1) how infrequently these terms were used during the course of oral arguments in these race-specific cases; (2) that when these words were used, it was usually by the attorneys arguing the cases, not the justices; and (3) some justices almost never mention these terms. The next step involved analyzing how often these terms appeared in the eventual court decisions, which also led to some surprising results. An analysis of the 2022–23 term’s oral arguments and Court opinions yielded results more consistent with expectations about the frequency of RETNO terms used in cases involving RETNO issues, perhaps attributable to the investiture of a third justice of color on the Court, which could constitute a critical mass. The final section also provides a roadmap for forthcoming additional research based on these preliminary findings
Food Price Narratives
Get PDFThe use of antitrust in the context of food is problematic because it so clearly violates the Consumer Welfare Standard as prescribed by the courts. Ultimately, antitrust rhetoric promoting ad nauseam enforcement will not improve consumer welfare. Advancing consumer welfare in the food industry must mean prioritizing lower food prices over some arbitrary threshold of market competition or protecting small farms. Courts can and should begin distinguishing these goals immediately
The Purpose and Practice of Precedent: What the Decade Long Debate Over \u3cem\u3eStare Decisis\u3c/em\u3e Teaches Us About the New Roberts Court
Get PDFThe Supreme Court’s tectonic decision in Dobbs v. Jackson Women’s Health upended the Doctrine of Substantive Due Process by radically reinterpreting the doctrine of stare decisis. The Court’s established practice regarding stare decisis should have operated to preserve the fifty-year-old abortion jurisprudence. But we should have seen this change coming. Although there has been an intense and involved debate over the purpose and practice of precedent for generations, that debate shifted at the beginning of 2018. Four approaches to stare decisis emerged along a continuum, from complete abandonment of the doctrine and incremental erosion to modernized adherence to precedent. This article examines how six key cases not only laid the foundation for the new stare decisis doctrine articulated in Dobbs, but it considers what we might expect from this Court as the Justices try to convince others to embrace one or a mixture of these four perspectives
Year in Review Lecture: The Cutting Edge of International Humanitarian Law
Get PDFThe Year in Review lecture is titled in a way that I might interpret slightly differently in viewing what has been over the past year. I hope to distill out a couple of bigger themes, a couple of bigger threads that perhaps wove their way throughout the past year as reflected in some of the words that have been exchanged since we all got together here in Chautauqua. I want, in a sense, to tie and weave those threads into the conference theme, which we haven’t heard that much about. This is: The cutting edge of international humanitarian law
Generative Artificial Intelligence and Copyright in the Film and Media Industry
Get PDFThe development of generative artificial intelligence (“GAI” or “generative AI”) introduces compelling benefits and capabilities to filmmakers and artists, but also brings complications regarding copyright of creative works. The American film and media industry in particular illustrates the scope of GAI’s legal, economic, and ethical implications. Though GAI may exhibit characteristics of independent agency or intent, GAI models are best understood as a new set of tools that serve a diverse range of applications in the creative process. The potential benefits of this set of tools can only be realized, then, if the filmmakers who use them are not unreasonably denied the authorship and ownership rights necessary to capitalize on their works. Copyright law can fulfill its utilitarian purpose in the context of the film industry with a balance of practical authorship requirements and dynamic licensing regimes for AI-assisted works. Through the right combination of legislation, policy, and best practices, copyright law can further facilitate the effective implementation of GAI in film and media while also recognizing its relevant challenges and risks
From Anti-BDS to Anti-ESG: The Next Generation of Boycotting the “Boycott” Is Only Slightly Less Problematic
Get PDFIn response to an explosion in Environmental, Social, Governance (“ESG”), state lawmakers are enacting statutes to penalize companies that “boycott” industries they seek to protect. This Note first explains how we got here. To do so, it explains how lawmakers used statutes aimed at suppressing the Boycott, Divestment, and Sanctions (“BDS”) movement against Israel as templates for anti-ESG boycott laws. Further, this Note examines the rise of ESG and the subsequent anti-ESG movement that led to the enactment of state anti-ESG boycott laws pertaining to public contracts.
By analyzing the mixed outcomes of recent First Amendment challenges to anti-BDS laws and applying the Supreme Court’s free speech jurisprudence to ESG practices, this Note argues that stark differences between the BDS movement and the ESG framework render the ESG practices that anti-ESG boycott laws target largely unlikely to be treated as protected speech.
Nonetheless, this Note contends that ESG activities should constitute protected speech in the form of expressive conduct if the message that the actor intends to convey through them is overwhelmingly apparent. Turning to fundamental principles of the First Amendment, this Notes posits that both anti-BDS and anti-ESG boycott laws stifle self-governance and undermine public discourse on urgent matters of public concern. By applying a nuanced understanding of First Amendment rights in the context of evolving corporate practices, this Note ultimately provides a cautionary tale of anti-boycott legislation that is, at its core, anti-First Amendment
Leveling the Playing Field for Racial Justice in the Civil Litigation System
Get PDFUnder the weight of the #MeToo movement and severe public pressure, Congress stopped this unseemly practice for a subset of Americans—those challenging sexual assault and harassment. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA), passed in 2022, gives these victims a choice of whether to challenge sexual misconduct in court or in arbitration. Such ubiquitous take-it-or-leave-it contracts are now unenforceable, giving this narrow swath of the population the power to decide for themselves how to challenge such outrageous wrongdoing. In Expanding the Ban on Forced Arbitration, Michael Z. Green argues that race discrimination claims should also be exempt from compulsory arbitration