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Religion Clause Challenges to Early Abortion Bans
No full textThe substantive due process right to abortion is gone. But other parts of the Constitution may also protect women\u27s right to control their bodies and live as equals in the United States. This Essay addresses what role the two religion clauses may play in advancing reproductive autonomy. Because religion and reproduction are intertwined, the religion clauses may provide some measure of constitutional protection.
The Establishment Clause bars the government from imposing religion onto those who do not share it. It also forbids the government from taking sides in theological disputes. Early abortion bans not only favor one religious belief on the contested question of when life begins, but codify that belief into law. Imposing onto all Americans the religious perspective that life begins at conception should violate the Establishment Clause.
The Free Exercise Clause prevents the government from burdening people\u27s exercise of religion. Its protections extend to requiring religious liberty exemptions from laws that prevent religious observance. In fact, the Supreme Court has greatly expanded the availability of religious exemptions. Consequently, women whose religion counsels abortions in situations forbidden by abortion bans should be entitled to an exemption
Shifting Towards Boilerplate Regulation
Full text linkConsumer assent to standard form contracts has been creating cognitive dissonance among contracts scholars for a century. Businesses impose standard forms on consumers, who never read the terms. But consumers would not understand them if they did. And they don’t have the bargaining power to change them anyway—the terms are famously “take it or leave it.” Contracting is ideally theorized as an act of voluntary, knowing consent to all the terms agreed to. The dissonance is that consumers, although ostensibly signaling their assent to the boilerplate by signing (or clicking, or tapping their phone screen), do not in fact know the content of what they are manifesting agreement to. That is, what looks like a contract, scholars argue, cannot really be a contract because of this lack of meaningful consent. Therefore, scholars have long argued for some form of sophisticated judicial contract doctrine, to recognize assent to the known and “dickered” terms, while discarding some or all of the problematic and unread terms. The courts, however, have steadfastly refused to engage in such surgical alteration of what is, for them, an “all-or-nothing” act of simply agreeing to be bound to the entire contract. The consumer has long been held to have a “duty to read” what she signs, and failing to do so will not change the courts’ willingness to find the entire contract enforceable (absent some finding of fraud, duress, unconscionability, or the like). At this stage, the judicial doctrine is mature enough—and has shown its relative imperviousness to scholarly proposals for doctrinal change—that it is unlikely that courts will suddenly become amenable to a revolutionary change in doctrine. Notions of precedent, predictability, and coherence augur for the likely permanence of the duty to read as enshrined judicial doctrine. A shift is needed. This article argues that legislative regulation is now the most likely vehicle through which effective policing of problematic boilerplate terms can come. Legislatures have already been gradually, and on a piecemeal basis, dictating that various specific contract terms are either prohibited or regulated for the last several decades (e.g., usury, covenants not to compete, waivers of the right of redemption). Therefore, given the enduring inflexibility of the duty to read, legislative regulation of boilerplate terms is the most likely path forward for addressing terms which are collectively perceived as problematic as a policy matter
The “Amateur” Division I Athlete Is Becoming a Thing of the Past, so Now What?: Addressing the Action Needed to Preserve Amateurism in College Sports
Full text linkCollege sports are in a state of logistical chaos. How did we get here? Where do we go next? What does the future of college sports look like? The driving force behind much of this uncertainty is the demise of amateurism at the Division I level of competition. The National Collegiate Athletic Association (“NCAA”) has struggled to define what makes a college athlete an “amateur” since its inception. Over time—and under the NCAA’s purported control—the line between amateur and professional athletes has become increasingly blurred. The NCAA’s failure to maintain the amateur model at the Division I level poses a substantial threat to the NCAA in the context of antitrust litigation. Antitrust challenges to the NCAA’s amateurism rules constitute a highly contested topic for all stakeholders of college sports: the players, the coaches, the fans, etc.
This Note explores the loss of amateurism in Division I sports and the resulting scrutiny the NCAA has faced, especially in recent years. Approaching this issue with an antitrust lens, this Note illustrates how the NCAA’s amateurism rules are evaluated by the courts and suggests why a court would no longer find the NCAA’s amateurism defense to antitrust claims viable, at least at the Division I level. Throughout this piece, the Note critiques the NCAA’s responses to the evolving landscape of collegiate sports, thus calling for a new method of oversight to preserve what is left of amateurism. This Note argues that amateurism is still intact at the Division II and III levels of competition, but steps must be taken in the near future to protect these programs and this sense of amateurism from the imminent changes to the college sports enterprise. Accordingly, this Note offers potential solutions to avoid the loss of amateurism and insulate Division II and III programs from impending cost-cutting measures. To conclude, this Note highlights what a loss of amateurism altogether could mean for future NCAA athletes as well as consumers of the college sports product
Defeat Fascism, Transform Democracy: Mapping Academic Resources, Reframing the Fundamentals, and Organizing for Collective Actions
Full text link\u3cem\u3eMoore v. United States\u3c/em\u3e: The U.S. Supreme Court’s Impending Revisiting of the Definition of “Income”
Full text linkThe passing of the Tax Cuts and Jobs Act (“TCJA”) in December 2017 made significant changes that affect both domestic and international businesses income taxes. One of the most notable changes involves the Internal Revenue Code (“IRC”) section 965 transition tax on foreign earnings of foreign subsidiaries of U.S. companies, which deems those earnings to be repatriated. Effectively, this transition tax disregards the realization element thought by some to be a U.S. Constitutional requirement. As such, questions have arisen in the courts regarding the constitutionality of these laws. The most noteworthy case of Moore v. United States has found its way to the steps of the U.S. Supreme Court. Petitioners are asking the U.S. Supreme Court to overturn the Ninth Circuit holding that income realization is not a requirement when upholding the transition tax. The outcome of this case could redefine the term “income” and thus disrupt the entire U.S. income tax code.
The ruling from Moore will greatly affect not only current tax regimes such as Subpart F, GILTI, passthrough tax treatment, but also may have large implications on proposed tax laws such as the mark-to-market tax. Eliminating the realization requirement in the definition of income would effectively eliminate all possibility of the mark-to-market tax, otherwise known as the wealth tax, and quite possibly change all of tax law as we know it
Gatekeeping & Class Certification: The Eleventh Circuit’s Stringent Approach to Admitting Expert Evidence in Support of Class Certification
Full text linkFederal Rule of Civil Procedure 23 is silent on whether evidence offered in support of a motion for class certification must be admissible under the Federal Rules of Evidence. The Supreme Court has not addressed this issue, and there is currently no authoritative framework for incorporating all or some of the federal evidentiary rules into the class certification process. Resultantly, circuit courts are split on this question and have coalesced among several different approaches. The Eleventh Circuit follows a rigorous evidentiary standard in which evidence offered in support of class certification generally must be admissible under the Federal Rules of Evidence. This Article examines how district courts in the Eleventh Circuit have applied this standard in class action litigation and how those results compare with district courts in other circuits. Based on our review, we conclude that this more rigorous evidentiary standard promotes judicial economy and preserves party resources
Legal Uncertainty in Virtual Worlds and Digital Goods: Do the Same Laws Apply?
Full text linkThe growth of virtual worlds and digital goods will force US courts to examine whether traditional laws are sufficient to protect consumers. To do so requires judges and legislative officials to possess a deep understanding of concepts that are everchanging. Many aspects of virtual worlds, such as the metaverse(s), are driven by web3 technology, the technology responsible for the NFT and cryptocurrency craze of recent years. It is impossible to ascertain the impact of virtual worlds on daily life, however, companies must nevertheless prepare for the shift toward virtual spaces and digital goods. There is greater skepticism regarding the utility of a metaverse compared to other recent technological advancements, such as artificial intelligence models, but the push for metaverses prevails even in 2023. Brands, creatives, and consumers will turn to courts for clarification on traditional laws within intellectual property, securities, privacy and data, and torts in the digital landscape. This note argues in favor of the application of the traditional intellectual property regime as it relates to digital goods, as it incentivizes creators to produce content in virtual spaces. Without adequate protection of digital works, even when such works exist in new “markets” like the metaverse(s), concerns over protection of intellectual property will arise.
While we are still in the early stages of relevant cases, there are a handful of rulings that provide some clarity. In Hermès International v. Rothschild, the Southern District of New York ruled on whether a digital good, such as an NFT, could infringe on another’s trademark using the same legal analysis as a traditional trademark infringement. The court in Hermès applied the Rogers v. Grimaldi test (the test that protects some artistic works under the First Amendment), holding that an NFT consisting of another’s mark should be analyzed using the Rogers test so long the use of the mark does not function primarily as a source identifier that would mislead consumers. Additionally, the court in Yuga Labs Inc. v. Ripps. dealt with a well-known NFT collection and a lookalike collection. The California Central District Court in Yuga Labs Inc. held that trademark law and the Lanham Act applies to “intangible” goods (including) NFTs, but unlike Hermés, the court refused to apply the Rogers test, holding that the lookalike NFT collection failed to reach the artistic threshold required to engage in the First Amendment analysis.
Additionally, the Supreme Court’s recent ruling in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith may have transformed the meaning of artistic works and fair use in copyright law. The Court’s ruling should exist as a warning to creatives that the threshold for a transformative work is higher than anticipated. This is significant evidence that other intellectual property regimes, like trademark law, will be impacted, and it is possible the Rogers test may require satisfaction of a similar threshold to qualify as an artistic work. Nevertheless, it is likely that traditional intellectual property law will apply smoothly to virtual worlds and digital goods. Thus, to adequately protect one’s brand, companies must expand trademark fillings to apply to virtual spaces, and artists/creatives must be cautious when using another’s mark– particularly if artists hope that the First Amendment will come to save them.
Additional questions arise surrounding digital goods and other fields of law, like securities law. The U.S. Securities Exchange Commission’s recent actions toward influencers advertising cryptocurrency coins implies that it will soon categorize cryptocurrencies and certain NFTs as securities bound by federal regulations. The issue of privacy and data collection is one of web3’s greatest threats, as it is difficult to identify who governs in a decentralized space. This note argues that companies selling NFTs and offering metaverse interactive experiences should comply with the highest standard of privacy and data collection, such as the European General Data Protection Regulation, to ensure compliance in an inherently globalized industry. This note further argues that torts, such as sexual and physical assault and harassment, should be regulated and controlled by the entity that controls the virtual experience. For example, if Meta runs its version of the Metaverse, Meta must have systems in place to protect against illegal conduct. The enforceability is difficult based on the decentralization of these digital worlds. Therefore, without minimum government requirements, it is the social responsibility of companies to provide a safe environment for users to interact and engage
ESG Implementation in Emerging & Frontier Markets: Lessons Cultivated from Sri Lanka and Beyond
Full text linkCrippling debt accrued within emerging and frontier market nations forces developing governments to enact policies contrary to the well-being of their overall economies. The influence of credit rating agencies as well as organizations like the World Bank and the International Monetary Fund (“IMF”) have handcuffed governments into implementing Environmental, Social, and Governance (“ESG”) policies that are unrealistic and unfeasible and have therefore caused detrimental societal impacts. This note examines how the application of ESG policies and governmental corruption resulted in Sri Lanka’s devastating economic collapse. Also scrutinized are those countries which have taken on debt but have managed well throughout slowing economic growth. At bottom, this note recommends that emerging and frontier markets move with caution when implementing ESG policies while credit rating agencies apply leniency when assessing sustainability measures. Moving beyond the top-down approach of the IMF and World Bank enables stable growth, which will benefit developing and developed economies alike