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In Support of UREAA: The Case for Timely, Uniform, and Comprehensive Action Against Restrictive Employment Agreements
Get PDFTens of millions of American workers across a range of occupations are bound by restrictive employment agreements. The COVID-19 pandemic has caused people to leave their jobs in search of more money, flexibility, and happiness—deemed the Great Resignation—shining a new light on the volatility of labor markets. But restrictive employment agreements limit workers’ exit options and stymie competition, in tension with our nation’s antitrust laws. The effects of these agreements are particularly damaging to low-wage workers. Rightfully so, policymakers across jurisdictions and political ideologies are increasingly introducing measures to curtail the abuse of these agreements. This area of the law would benefit from timely, uniform, and comprehensive reform. The Uniform Restrictive Employment Agreement Act (“UREAA”) has emerged as a forward-thinking piece of legislation that seeks to unify the current patchwork of state laws targeting various renditions of restrictive employment agreements. Every state should adopt UREAA, and the federal government should join their surging fight against restrictive employment agreements.
This Note expresses the state of the law as it exists on August 1, 2022. Part I ushers in the concept of labor mobility and its particular importance to low-wage workers. Part II explains how current events are influencing workers’ changing attitudes towards their jobs, spotlighting the need for labor mobility. Part III introduces a widespread barrier to labor mobility—restrictive employment agreements, which function as restraints of trade. Part IV presents the role of antitrust as a safeguard against unreasonable restraints of trade. Part V synthesizes common arguments for and against restrictive employment agreements as unreasonable restraints of trade, exploring the changing landscape of restrictive employment agreement laws, as jurisdictions re-examine their usefulness and fairness. Part VI presents this author’s view that action against restrictive employment agreements should be timely, uniform, and comprehensive. Part VII encourages states to adopt UREAA in consideration of these metrics, while also acknowledging the Act’s limitations and highlighting areas in which the federal government can contribute. Part VIII concludes by providing a model for multilevel enforcement of restrictive employment agreement laws
Religious Liberty for All? A Religious Right to Abortion
Get PDFOne of the most notable trends in recent Supreme Court jurisprudence is the expansion of religious liberty rights. The right to practice one\u27s faith is a core feature of a democracy, but the Supreme Court has privileged that right over other equally critical ones, most notably the right to equal treatment. Thus, for example, the Court has held that for-profit companies have a religious right to exclude contraception from their health insurance plans and that nonprofit charities have a religious right to refuse to place foster children with same-sex couples. In these and similar cases, the religious beliefs aligned with conservative Christianity.
But what if the religious liberty claim were not brought by a conservative Christian but by a progressive Christian, or not a Christian at all, and the religious belief collided with traditional Christian ideology? More precisely, what might be the result of a religious liberty challenge to an abortion ban? This question is not farfetched, as Jewish and other faith groups in multiple states are challenging restrictive abortion laws based upon religious freedom. These plaintiffs argue that their state\u27s abortion ban impedes their ability to live out the commandments of their faith. Would the Supreme Court retrench its religious liberty doctrine in the face of these lawsuits? Or would expansive religious liberty exemptions be available for progressive views as well as conservative ones? Or neither? This Essay examines that question, as well as the implications of denying the progressive religious liberty claim.
Part I outlines the ballooning of religious liberty rights, and how they have usually helped conservative white Christians at the expense of less powerful groups. Part II applies the current expansive doctrine to a claim for a religious right to abortion, arguing it should succeed given recent decisions. Part III suggests that, despite the current doctrine, the Court will likely reject the claim and discusses what this failure indicates about the future of the Supreme Court
Amazon\u27s Pricing Paradox
Get PDFAntitrust scholars have widely debated the paradox of Amazon seemingly wielding monopoly power while charging low prices to consumers. A single company\u27s behavior thereby helped spark a vibrant intellectual conversation as scholars debated why Amazon\u27s prices were so low, whether enforcers should intervene, and, eventually, how the field of antitrust should be reformed. One of the main sources of agreement in these and other scholarly conversations has long been that Amazon charges low prices. This Article challenges that assumption by demonstrating that Amazon customers may pay significantly higher prices than is commonly understood due to strategies that do not necessarily depend on monopoly power. More importantly, unraveling the disconnect between perception and reality yields broader insights. One of the reasons why perceptions of Amazon\u27s pricing have remained disconnected from reality is that conversations about regulating Amazon have paid inadequate attention to behavioral economics. Behavioral economics reveals how the company leverages its sophisticated algorithms, large datasets, and dark patterns to build a marketplace of consumer misperception by, for instance, making it difficult for consumers to find the low-priced items. Such practices undermine the goals of competition, in the economic sense of the word. But these practices have traditionally been the focus of consumer law rather than antitrust. Indeed, the longstanding inattention to these consumer law-related behavioral pricing practices raises the question of whether scholars have been incorrectly describing Amazon\u27s prices as low. Amazon may offer many products at low, competitive prices, but by exploiting consumers\u27 behavioral biases, Amazon may prevent a substantial number of consumers from finding those low prices. Thus, a behavioral consumer lens is necessary to see that what was originally framed as an antitrust paradox is better viewed as a more general pricing paradox. A company perceived as offering low prices may have been instead manipulating consumers to pay more. To see the full set of concrete legal solutions for promoting competition in Amazon\u27s marketplace and beyond, it is important to move consumer law out of antitrust\u27s shadow. Consumer law interventions include mandating information disclosures by Amazon to empower artificially intelligent digital intermediaries that could help lower consumers\u27 search costs. Lawsuits based in unfair or deceptive acts or practices are also possible. Consumer law and antitrust law operating at full force offer the best chance for ushering in an era of open retail in which digital markets remain competitive and adequately serve consumers
Taking Care of Business: An Empirical Examination of the Top S&P 500 Companies and Their Role as Public Health Regulators During the COVID-19 Pandemic
Get PDFData from the top 15 constituents by weight on the S&P 500 is assembled to identify trends among the policies these companies implemented in the United States during the COVID-19 pandemic. Some policies were fairly consistent across the board, especially in regard to remote work opportunities and health and safety measures for essential and/or in-person employees. Other policies, including vaccination requirements and vaccine incentives, varied across and within industries. Some companies that were examined went beyond the relevant federal, state, or local requirements in effect at the time, while other companies pushed back against public health guidance
The Uncertain Future of Constitutional Democracy in the Era of Populism: Chile and Beyond
Get PDFLargely missing from the extensive discussions of populism and illiberal democracy is the emerging question of 21st century constitutionalism. Nowadays, it is hard to see relevant constitutional changes without a strong appeal to direct popular political participation. Institutional mechanisms such as referenda, citizens’ assemblies, and constitutional conventions emerge as near-universal parts of the canon of every academic and political discussion on how constitutions should be enacted and amended. This Article’s aim is to offer a cautionary approach to the way participatory mechanisms can work in constitution-making and to stress the difference between the power to ratify constitutional proposals and the forms of governance that must follow.
Constitutions are necessarily the product of political and historical moments. Ours is a time of populist challenge to the restraining institutions of governance. We show how constitution-making processes taking place under existing political contexts can fail not simply despite the existence of participatory mechanisms, but in large part because of them. We identify two types of failures. First, the authoritarian failure, which consists of constitution-making processes that lead to authoritarian outcomes or become part of democratic backsliding or abusive processes. Second, the activation failure, by which constitutions are not passed. This failure is likely to take place when reforms attempt to bypass established, functioning institutional actors, whatever their flaws.
This Article will turn to the recent failure of the Chilean constitutional effort in 2022 to focus on the historic roles of non-state organizations, most notably political parties, in stabilizing and legitimizing successful democratic governance. The current trend in constitutional formation, reflecting the ascending populist ethos of our times, is to bypass the representative institutions that do exist in favor of a pact between the state and an ill-defined entity known as “the people.” The tendency of political power without structural checks and balances to lead to autocracy is reasonably well understood. But Chile, together with other recent examples of failed constitutional processes, highlights the risks of activation failure in democratic settings—i.e., contexts in which representative institutions exist and function, though flawed. We argue that a relevant condition to prevent the activation failure is to use the constitution-making processes as an opportunity to strengthen the political party system by including the existing parties in the process. Success stories of constitution-making have widely shown the advantages that political compromises among rival actors bring in terms of procedural legitimacy—wide acceptance of the constitution’s content—and substantive legitimacy—the inclination of those processes in promoting politically liberal institutions, but little has been said about activation failures lacking those features. This Article seeks to fill that gap
Mapping and Mobilizing Legal Criticalities: Making the Move from Diaspora to Collective or Legal Scholars Making a Difference as Culture Warriors
Get PDFThe Market-Essential Role of Corporate Climate Disclosure
No full textThis Article focuses on capital market efficiency as an often-downplayed legal rationale for mandating corporate climate disclosure, and explores it alongside the notion of investor demand, which has assumed a prominent and, increasingly, contested role in debates on climate disclosure. Because market efficiency (encompassing both securities price accuracy and overall capital market allocative efficiency) is generally unobservable, many commentators have instead emphasized the highly visible investor demand for climate-related disclosure as evidenced by shareholder proposals, voting behavior, stewardship policies, and public statements. Unfortunately, investor demand can be disputed, sometimes fairly but most often unfairly, because investor preferences are heterogeneous, dynamic, and difficult to aggregate. This Article argues that while investor demand can be a helpful datapoint, a proper and sufficient legal justification for mandating climate-related disclosure lies in the need to ensure that firms\u27 securities prices accurately reflect relevant information, which, in turn, will help maintain the overall integrity of the capital markets. This argument is supported by the statutory text, legislative history, Securities and Exchange Commission ( SEC ) rulemaking practice, and judicial doctrine. In short, the role of corporate climate disclosure is market-essential and need not hinge on evidence of investor demand.
The Article\u27s analysis has implications for ongoing debates about regulatory efforts on corporate climate disclosure, including the propriety of the SEC\u27s climate disclosure project, the viability of an investor-optional approach to disclosure, and objections based on major questions theories. Indeed, once it becomes clear that the SEC\u27s disclosure rule is about basic market efficiency - and not about regulating climate change - such objections begin to fall away. More broadly, the Article also highlights the enduring importance of market efficiency as an objective justification for mandatory disclosure in an era of highly visible and sometimes controversial stewardship by asset managers and other investors
