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Manufactured State Immigration Emergencies as State Vigilantism
Get PDFPresident Trump shattered norms when he declared a national emergency at the U.S.–Mexico border to build a border wall. State governors have now followed that lead in taking up what Justice Jackson, dissenting in Korematsu v. United States (1944), called the “loaded weapon” of emergency—doing so, like Trump, in the context of the border. Governors of Texas, Arizona, and Florida have all issued state declarations of emergency based on (1) migration, and (2) the Biden administration’s purported failure to engage in immigration enforcement. These state emergency declarations have not been studied or even identified in legal literature as a state mirror to Trump’s federal declaration, even though they are as norms-shattering as the Trump declaration was both facially and in implementation. In justifying the emergency declarations, the governors have used xenophobia and the logic of self-help from international law. In other words, this is state vigilantism: claiming that because the federal government is not using its power to protect states’ residents, the states are unilaterally exercising it themselves under state emergency authority. This state vigilantism is sweeping, extraordinary, and contrary to the Supremacy Clause—particularly in Texas, which has implemented a parallel system of state immigration enforcement and has deployed National Guard soldiers along the border with instructions to force migrants into Mexico. It is also continuous with the erosion of norms begun with Trump’s border wall “emergency.” In addition to the reforms that scholars suggested following Trump’s declaration, to combat state vigilantism, I propose that the federal government not only focus on Supremacy Clause litigation but also exercise its civil rights enforcement authority and that state legislatures and judges limit the scope of state emergency declarations, to exclude policy disagreements with the federal government
The Climate Moratorium
Get PDFClimate change is our new reality. The impacts of climatic changes, including massive forest fires, floods, drought, severe storms, saltwater intrusion, and the resulting migration of people displaced by such impacts, will continue to ravage communities across the nation into the foreseeable future. In the meantime, communities continue to expand and growth continues unabated in many of the most climate-impacted areas. Given that most communities are unprepared for the onslaught of climate disasters and many continue to increase existing community vulnerabilities through unsustainable growth and development practices, we need legal tools that will provide space to engage in effective adaptation planning. The climate moratorium is one such tool. Moratoria, which have been used to temporarily halt development and associated impacts to facilitate effective land-use planning, have long been used by communities to address community and infrastructure vulnerabilities. This Article proposes a climate moratorium
Pushing a Square Pin into a Round Hole? Intellectual Property Challenges to a Sustainable and Circular Economy, and What to Do About It
Get PDFIt is old news that the world is facing growing environmental problems related to industrial manufacturing and waste management. Finally, consumers are demanding change due to the increasing threat of climate change, and industries are being forced to adapt. Repairing, reselling, upcycling, and recycling existing products are key activities to promote sustainability and a circular economy, but current intellectual property (IP) rules may stand in the way when these activities are not conducted by, or with the consent of IP owners. This opinion argues that IP cannot be used to prevent a greener and more sustainable economy. Instead, it needs to incentivize circular activities in the interest of everyone. New approaches, including bolder interpretation of existing limitations and exceptions, and adoption of new exceptions, are essential to rethink IP to support a sustainable future
Afterword
No full textThe chapters in this book have presented, and encourage, a critical reading of several contemporary American legal texts, all from the last hundred years or so, and most from the last thirty. They invite readers to use the rhetorical theories described or embodied in another set of texts, all but two of which are more than fifteen hundred years old. This afterword describes how that focus for this volume arose from a reading group
College Athlete Unionization
Get PDFThe U.S. Supreme Court’s landmark 2021 decision in NCAA v. Alston has opened the door to serious consideration of the potential for college athlete unionization and collective bargaining. The ruling, highlighted by Justice Kavanaugh’s concurring opinion, suggests collective bargaining as a potential solution to the National Collegiate Athletic Association’s (“NCAA’s”) antitrust vulnerabilities. This Article delves into the initial legal and strategic questions surrounding the prospect of unionization, focusing particularly on NCAA Division I football and basketball, due to their significant revenue generation making them prime candidates for unionization efforts.
The National Labor Relations Board (“NLRB” or “Board”) is positioned to play a central role in the unionization attempts at private universities and potentially influence public university efforts. A recent NLRB complaint against the University of Southern California (“USC”) accusing the institution of misclassifying student athletes as non-employees will answer some important labor law questions that will likely guide future unionization efforts. Moreover, the Service Employees International Union’s (“SEIU’s”) successful union election bid involving the Dartmouth College men’s basketball team represents a significant step forward, marking the potential beginning of college athlete unionization.
This Article provides a comprehensive examination of the issue, starting with the NLRB’s involvement and its pivotal decision regarding the Northwestern University case. It proceeds to dissect the Supreme Court’s Alston decision’s implications for unionization and collective bargaining. It further explores the complex labor and employment law intricacies, such as the definitions of employee and employer, appropriate bargaining units, and the NLRB’s jurisdiction over public universities. Finally, it theorizes on how unionization may unfold, outlining possible challenges, pitfalls, and the expected advantages for college athletes through collective bargaining
Statutory Religious Accommodation in Employment and the Problems of Judicial Intent and Outcome
Get PDFThe Groff v. DeJoy case unhappily, but inevitably, generates a variety of realistically unresolvable fundamental problems in typical statutory religious accommodation cases. Perhaps even more important, though, are the unintended and perverse results of Groff’s placing a generally heavier burden of religious accommodation on employers. The Groff standard indeed incentivizes the bringing of more religious discrimination cases, and both the winning and losing of such cases by religious claimants. But our adversarial cultural circumstances, including the typical inseparability of religion, politics, and culture, crucially affect the actual, but unintended, results of judicial reforms. The Groff rule is likely to result, unintendedly, in greater, not less, overall religiously grounded alienation and demoralization in the typical workplace
Shifting Toward Boilerplate Regulation
Get PDFConsumer 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
A welfare analysis of Medicaid and recidivism
No full textWe present conservative estimates for the marginal value of public funds (MVPF) associated with providing Medicaid to inmates exiting prison. The MVPF measures the ratio between a policy\u27s social benefits and its governmental costs. Our MVPF estimates suggest that every additional 3.45 and $10.62. A large proportion of the benefits we consider stems from the reduced future criminal involvement among former inmates who receive Medicaid. Employing a difference-in-differences approach, we find that Medicaid expansions reduce the average number of times a released inmate is reimprisoned within 1 year by approximately 11.5%. By combining this estimate with key values reported elsewhere (e.g., victimization costs, data on victimization and incarceration), we quantify specific benefits arising from the policy. These encompass diminished criminal harm due to lower reoffense rates, direct benefits to former inmates through Medicaid coverage, increased employment opportunities, and reduced loss of liberty resulting from fewer future reimprisonments. Net-costs consist of the cost of providing Medicaid net of changes in the governmental cost of imprisonment, changes in the tax revenue due to increased employment, and changes in spending on other public assistance programs. We interpret our estimates as conservative since we deliberately err on the side of under-estimating benefits and over-estimating costs when data on specific items are imprecise or incomplete. Our findings align closely with others in the sparse literature investigating the crime-related welfare impacts of Medicaid access, underscoring the substantial indirect benefits public health insurance programs can offer through crime reduction, in addition to their direct health-related advantages
The United Nations Security Council as a climate litigation body
No full textThe role of the UN Security Council in settling disputes among States has sometimes been depicted as quasi-judicial in nature since the Council may base its decisions on violations of law even though it is neither a court nor a formal dispute resolution body. Indeed, the political as distinct from judicial nature of the Council is typically emphasised in explaining the relationship between the Council and the International Court of Justice as the UN’s principal judicial organ. The Council has addressed climate change since 2007 and has inter alia included climate considerations into the mandates of peace missions. This chapter breaks new ground in analysing the Council as a dispute resolution body in its own right. The five-stage journey of litigation devised by the editors facilitates consideration of how the Council’s response to climate insecurity may continue to evolve in coming years