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A Survey of the Literature on Federal Appellate Practice and Procedure
Get PDFThis is a survey of the literature related to appellate practice and procedure before the United States Courts of Appeals for the benefit of lawyers and judges and scholars. It is reproduced with permission from THOMAS E. BAKER, A PRIMER ON THE JURISDICTION OF THE U.S. COURTS OF APPEALS (Fed. Jud. Ctr. 3d ed. 2023) available at: https://www.fjc.gov/content/379899/primer-jurisdiction-us-courts-appeals-third-edition). This origin explains the scattered references in the entries to “this Primer.
The Freedom of Influencing
No full textSocial media stars and the Federal Trade Commission (“FTC”) Act are clashing. Influencer marketing is a preferred way for entertainers, pundits, and everyday people to monetize their audiences and popularity. Manufacturers, service providers, retailers, and advertising agencies leverage influencers to reach into millions or even billions of consumer devices, capturing minutes or seconds of the market’s fleeting attention. FTC enforcement actions and private lawsuits have targeted influencers for failing to disclose the nature of a sponsorship relationship with a manufacturer, marketer, or service provider. Such a failure to disclose payments prominently is very common in Hollywood films and on radio and television, however. The Code of Federal Regulations, FTC notices, and press releases contain exemptions tailored to such legacy media. This Article addresses whether the disparate treatment of social media influencers and certain legacy media formats may amount to a content-based regulation of speech that violates the freedom of speech. Drawing on intellectual property law, consumer law, and securities law precedents, it argues that the more intense focus on disclosures by social media influencers infringes the freedom of influencing. It is irrational and discriminatory to impose greater obligations on influencers who are paid to mention or use products or services than on legacy media formats whose actors or directors mention or use similar products or services
The Distribution of Justices\u27 Votes and Countering National Disunity
Get PDFThe estimation of the distribution that matches the voting of the justices of the Supreme Court shows that voting is correlated and reveals three phenomena: an outlier distribution produced by one composition of the Court, the surprising frequency of unanimous decisions, and the intensity with which the Court avoids 4–4 decisions. The intensity with which the Court avoids 4–4 splits and the strength of the drive to produce unanimous decisions seem sensitive to national disunity. At times of greater disunity, 1965 to 1975 and 2001 to 2020, the Court avoids 4–4 splits more intensely and has a greater fraction of its decisions be unanimous
Four Basic Postulates Concerning Women and Workplace Bullying in the United States
Get PDFResponding to Kerri Lynn Stone\u27s Panes of the Glass Ceiling, this article delves into the pervasive issue of workplace bullying and its nuanced impact on women in professional settings. Stone\u27s book identifies distinct panes of gender bias hindering women\u27s progress, with a focus on workplace bullying as a major sub-theme. The essay proposes four postulates, drawing on national surveys by the Workplace Bullying Institute and articles from the author\u27s professional blog, Minding the Workplace. Emphasizing the disproportionate targeting of women, the role of male perpetrators, complexities surrounding female perpetrators, and the potential of anti-bullying laws, the essay contributes to understanding and addressing workplace gender dynamics
Save Your Rights: How Florida and Other States Have Targeted Voting Access Following the 2020 Election
Get PDFFollowing the 2020 general election, Florida’s Republican led legislature introduced Senate Bill 90 (“S.B. 90”), which seeks to put many restrictions on various aspects of the voting process. S.B. 90 limits ballot drop-off boxes, restricts mail-in voting, proscribes “line-warming,” increases registration difficulty, and expands identification requirements. Despite lauding Florida’s election as a gold standard for the rest of the country, Governor Ron DeSantis approved this bill in May of 2021, explaining that Florida should not become complacent despite its success. The Republican Governor approved this law against the backdrop of record voter turnout for Black and Latino voters and record mail-in voting by Democrats. Florida Rising Together, a grassroots organization working alongside other similar organizations, has filed suit against the State of Florida. Florida Rising Together’s suit alleges that this law intends to discriminate against Black, Latino, and elderly Florida voters by suppressing their vote. Florida Rising Together sought to introduce three professors from University of Florida as expert witnesses in their case against Florida. In response, the university—a public institution and organ of the Florida State government—barred all three professors from serving as expert witnesses for a party adverse to the State’s interests. While unprecedented, experts assert that the university’s conduct implicates violations of the professors’ First Amendment rights, despite any likelihood of a conflict of interest existing between them and their employer. By using the Pickering balancing test, the United States District Court for the Northern District of Florida should find that any conflict of interest the professors’ expert testimony may create in their relationship as state employees is far outweighed by the professors’ interest, as citizens, to comment upon matters of public concern—whether Florida’s newly implemented law violates the Fifteenth Amendment of the Constitution and the Voting Rights Act. Furthermore, Florida Rising Together (“Florida Rising”) should bring a Section 1985 claim against University of Florida officials for intimidating witnesses in a civil rights case
Health Inequities Among People Who Use Drugs in a Post-Dobbs America: The Case for a Syndemic Analysis
No full textPunitive policy responses to substance use and to abortion care constitute direct attacks on personal liberty and bodily autonomy. In this article, we leverage the concept of “syndemics” to anticipate how the already synergistic stigmas against people who use drugs and people who seek abortion services will be further compounded the Dobbs decisio
Saving Agency Adjudication
No full textProfessor Christopher J. Walker of University of Michigan Law School presents his work Saving Agency Adjudication. The article discusses the potential crisis facing agency adjudication in the US due to recent court rulings and proposes alternative solutions to creating a new agency or expanding Article I or III courts, arguing for the use of independence-enhancing tools provided by the Constitution to address the perceived threats to agency adjudicator decisional independence.https://ecollections.law.fiu.edu/faculty-workshops/1066/thumbnail.jp
Contemporary Crises in Cuba: Economic, Political, and Social
Get PDFIn this paper my co-author and I will present the various crises that are taking place in Cuba at present: economic, political, and cultural. We rely on published data, such as the GDP, as well as materials from in-depth interviews and participant observation
Weaponizing Rhetoric to Legitimate Regulatory Failures
Get PDFPyramid schemes are illegal. According to the courts, they are fraudulent because they must eventually collapse, disappointing or exploiting the members at the bottom. This illegality, largely governed by the Federal Trade Commission (FTC) and the Securities and Exchange Commission (SEC), is narrowly construed to encompass only very specific instances of activity. In particular, we argue that the specificity of the law allows multi-level marketing companies (MLMs) to argue that they are ‘not a pyramid scheme’ both legally and societally in order to obfuscate exploitative conditions within the company. We take LuLaRoe as a case study of the ways in which this discourse is weaponized to obfuscate the harms of multi-level marketing, thereby exposing a substantial hole in regulatory frameworks. We conduct thematic text analysis on a popular internet discussion forum to study how ordinary people understand the law surrounding multi-level marketing companies. We share findings about how the specific construction of the law affects legal consciousness and cynicism about the protective capacities of consumer protection and regulatory law. We advance the theoretical terrain by moving from legal consciousness to legal cynicism to a new concept that we name “legal creativity.” We ultimately argue that a narrow legal interpretation of “pyramid schemes” serves to further exploit the very people that such illegality is meant to protect, but that ordinary people navigate regulatory holes and fundamentally imperfect knowledge of the law by employing legal creativity to generate solutions