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Bostock: A Clean Cut into the Gordian Knot of Causation
Full text linkRegardless of merit, most individual employment discrimination claims die a fast death at summary judgment. Judges apply the fine mesh net created by McDonnell Douglas v. Green, and most cases are caught in its trap. This dated, obfuscatory Supreme Court case creates a complex and flawed binary approach to causation: either discrimination or an innocent reason caused an adverse employment action. For decades, all three levels of the federal judiciary have wrestled with McDonnell Douglas, creating snarls and knots in construing causation. Because of this causal confusion, the ideal of equal opportunity in employment is on life-support.
Judges and practitioners must take note of Bostock v. Clayton County, a stunning Supreme Court case that lays a new foundation to clear this causal confusion. In this Article, I argue that Bostock creates a new mixed-motive paradigm that, if correctly applied, should transform individual discrimination law in this country by allowing juries to hear more cases. Bostock explicitly recognizes what the social sciences have long known: decision-making in the workplace is often complex, and both discriminatory and innocent reasons may be butfor causes of an employer\u27s adverse action against an employee. Tort law labels these multiple sufficient cause cases. In the first work of its kind, I apply the causation standards in Bostock to create a taxonomy of causation scenarios that should guide lower courts in their analysis of individual discrimination cases at pre-trial stages.
As Bostock borrows its causation standards from tort law, this Article examines the nuances of that discipline to determine the legitimacy of Bostock\u27s causation discussion. I conclude that while Bostock conforms to tort law, the riddle of causation persists in that and almost every discipline. Still, Bostock\u27s causation logic is sufficient to guide courts into the future on firm ground. In the first comprehensive work of its kind, this Article assists courts by applying Bostock at each stage of litigation through jury trials. Bostock can help revive the ideal of equal opportunity in employment.
I conclude the paper with tandem principled suggestions. First, I posit that the Court or Congress could create a burden-shifting scheme in multiple sufficient cause cases. Second, such a burden shifting of proof would pave the way for an allocation of fault scheme, similar to that found in tort law, whereby the plaintiff would recover those damages that correlate to the employer\u27s percentage of discriminatory causation
Consumer Data Privacy: A Federal Standard May Be the Cure for Business Compliance
Full text linkThe discussion around personal privacy has only become more important in our modern, digitized world. In Europe, world leaders recognized the need for legal mechanisms to preserve personal data privacy in the wake of the Facebook Cambridge Analytica data scandal. Following suit in the United States, California and other States have passed their own legislation with similar laudable goals. However, the broad and sweeping effects of these laws means that businesses must shift resources from profitable uses into costly compliance regimes that, in some cases, are inconsistent with each other. This Comment discusses the burdens that these laws place on regulated businesses, as well as potential constitutional concerns. Finally, this Comment proposes that a federal standard be put in place in the United States to both ensure robust protection of consumers’ personal data and to decrease the substantial burdens that a patchwork of state law creates for businesses that must comply with them
Blockchain Technology: Limited Liability Companies and the Need for North Carolina Legislation
Full text linkIn the last few years, a new, technology-driven organizational structure has arisen in response to changing conceptions of trust: the block-chain-based LLC (BBLLC). Much like the LLC from which they take their name, these entities were adapted to provide unique advantages in the modern business environment. By coupling traditional LLC notions with an existence on a peer-to-peer blockchain network as a series of smart contracts, they allow their members and managers to leverage low-cost and intermediary-free interaction with each other and with other customers and businesses. As blockchain networks generally do, instead of grounding stakeholder reliance on the traditional “trust” generated by human relationships, BBLLCs rely mostly on the proof-of-work concept embedded within blockchain technology—digital ledgers, circulated to all members as well as interested transactional parties that provide a verified history of all transactions within a particular node’s block—to ensure the validity and accuracy of the organization’s operations. More simply, they allow business to be done faster, cheaper, and safer. These benefits aside, most states do not recognize BBLLCs as legal business organizations. And in these states, BBLLCs are instead simply known as decentralized autonomous organizations (DAOs). But it is becoming clear that more state legislation is needed to resolve the pressing legal and practical is-sues of non-recognition and general operations. And North Carolina has a unique opportunity to address these issues by leveraging the insights sure to be gained from its 2021 FinTech and InsurTech “regulatory sand-box” to develop a BBLLC Act of its own. Already positioned as a leader in its own right in the technology space, North Carolina should follow the lead of Wyoming and Vermont and take its place at the trailhead for the next evolutionary step of business organizations
One Hundred & Thirty-Sixth Spring Commencement (2022)
Full text linkhttps://scholarship.law.campbell.edu/commencement/1099/thumbnail.jp
Minnesota: Decades of Decisions and Impact on Sports Law
Full text linkThe purpose of this Article is to demonstrate that Minnesota provides one of the most substantial examples of how sport and the law intersect. The Article begins with the 1970s and explores, decade-by-decade, many of the major sports law claims, cases, judgments, and incidents associated with Minnesota. The state’s flagship institution—the University of Minnesota Twin Cities—is the epicenter of many of these cases, providing examples of impropriety within institutional rules or the bylaws of the National Collegiate Athletic Association. Despite the many instances that the University of Minnesota Twin Cities has run afoul of NCAA rules, it is not the only campus or university in the state that provides sports law material. Minnesota has had a lasting effect on the Eighth Circuit Court of Appeals, professional sports, and labor relations of the sports world. Ultimately, this Article demonstrates that Minnesota must continue to be a part of the discussion in sports law
The Modern Origins and Evolution of the North Carolina Political Question Doctrine
Full text linkThis Article explores the development of the political question doctrine in North Carolina jurisprudence. The Article describes the federal origins of the doctrine and charts its adoption in North Carolina, first through the litigation of fundamental rights cases and later in separation of powers matters. The political question doctrine is a prudential doctrine exercised by courts that serves as a bar to relief on matters where the coordinate political branches of government—the executive and legislative—may have primacy. This Article concludes that the doctrine has been narrowed over time in North Carolina, though it may still be utilized in certain instances
First Registrant of Campbell College School of Law
No full textSouthern Pines Pilothttps://scholarship.law.campbell.edu/history/1002/thumbnail.jp