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Male Same-Sex Horseplay : The Epicenter of All Sexual Harassment?
No full textIn Oncale v. Sundowner Offshore Services, Inc., the U.S. SupremeCourt recognized same-sex sexual harassment as a cognizable claim of sex discrimination under Title VII of the Civil Rights Act of 1964. At the time, many scholars found this recognition to be significant andimportant, but some also argued that the Court provided an incomplete analysis regarding the meaning of discrimination “because of sex.” Specifically, some scholars argue that the Court’s opinion reinforces the sexual desire paradigm in the analysis of sexual harassment cases. Building upon this critique, this Article focuses specifically on the harassment of men who generally are perceived as gender-conforming. In doing so, it uses masculinities theorization to argue that some workplace harassment against these men, which courts have been inclined to treat as mere “horseplay,” is actually discrimination based on sex. Examining same-sex harassment cases through this masculinities modified lens, this Article concludes that this broader understanding of sexual harassment is important because men who are perceived as gender-conforming are entitled to more legal protection than they are currently experiencing. Furthermore, it raises the question of whether the masculinity competition that leads to harassment among gender conforming men is actually the epicenter of all sexual harassment. If this is the case, it seems that an important step toward stopping the harassment of women (and men who are perceived as gender-nonconforming) is to stop gender-conforming men from harassing gender-conforming men
Can\u27t Touch This: Relators\u27 Limited Control in Qui Tam Actions
Get PDFThe False Claims Act has evolved into one of the U.S. Government’s most successful tools to recover from those who defraud it. The Act’s efficacy is greatly bolstered by its qui tam provision which allows private citizens, called relators, to file complaints against fraudulent actors on behalf of the Government. The relators effectively put the government on notice of fraud committed against it in return for a share of the recovery if the action is successful. While effective, this provision has led to disputes between the government and the relator when the government seeks to dismiss an action a relator is actively pursuing. The circuits have split on the proper way to balance the interests of the government and the relators, and in its recent decision, the Seventh Circuit improperly placed a greater importance on the relator of an action than the true injured party, the government. Rather than adopting a rule that allows for relators to challenge the government’s decisions on substance, the court should have instead only allowed for challenges to the procedure involved in reaching its decision to dismiss. Such a rule would guarantee that the government retains privacy in its litigation decisions, while also allowing a relator to ensure proper due diligence was given to the action prior to dismissal
Grin and “Bare” It: The Seventh Circuit’s Stamp of Approval on Unreasonable Fourth Amendment Violations
Get PDFThe Fourth Amendment guarantees the people’s right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Originally conceived as a property-based protection against arbitrary invasions by officials during the colonial era, the Fourth Amendment has since been interpreted to guarantee a reasonable expectation of privacy in other areas, too. In fact, since the 1960s, courts interpreted the Fourth Amendment with a keen awareness of advancing technology. Courts have done so in order to navigate the scope of the Amendment’s protections as the government’s prying eye and uninvited ear threatened the sanctity of protected areas from afar, especially the home. Even after determining whether something was a search, a more formidable, subjective question remains: is the search unreasonable? The line separating what is reasonable from what is unreasonable is blurred, at best.
This blurring was evident in Naperville Smart Meter Awareness v. City of Naperville. The City of Naperville received a grant from the Federal Government to upgrade its electrical grid and used a portion of that grant—with no input from its citizens whatsoever—to install “smart meters.” Smart meters are digital electric meters that record usage in set intervals; in the City of Naperville’s case, every fifteen minutes. The Seventh Circuit held that while the smart meter data recording was undeniably a search, it was reasonable in consideration of local and Federal Government interests and consumer-related benefits, such as reduced labor costs. The most noteworthy part of the opinion is the Seventh Circuit’s note immediately preceding the conclusion. The court qualified its holding as particular to the circumstances of this case, cautioning that even something such as a shorter interval collection could change the outcome. The note echoed the arbitrariness of the Supreme Court’s recent decision in Carpenter v. United States, where the Court drew the constitutional line of reasonability at a six-day period of cell-site location information.
This Comment argues that the Seventh Circuit’s determination that fifteen-minute data collection intervals are reasonable, while noting that a shorter interval might not be, is precarious in consideration of Fourth Amendment precedent and fails to apply strict scrutiny analysis where a fundamental liberty is concerned. It reflects the same ill-defined line drawn in Carpenter, thus indicating a more systemic problem. After all, longstanding precedent establishes that neither the quality nor quantity of information obtained matters; all details within a home are intimate for the purposes of Fourth Amendment analysis. Any attempts to identify categories of information that are inherently reasonable or unreasonable, or drawing a line at fifteen minutes instead of fourteen minutes, inserts subjectivity into an area where Fourth Amendment protections of a home were intended to remain absolute. Smart meter technology will become more prevalent across the country in the next couple of years. Any treatment of the smart meter technology at this point—where the Seventh Circuit is the first to issue an opinion regarding the meters—is critical, and should be prospective as to the direction this technology is headed in, and not necessarily where it has been or currently stands
I Might Stay Awhile: The Fundamental Right to Vote in a Residency vs. Domicile
Get PDFThe right to vote is a vital aspect of the United States Constitution, and it is a fundamental right that is uniformly cherished throughout the nation. Yet, the right to vote is not fundamental for citizens residing in U.S. territories. The Seventh Circuit upheld this principle in Segovia v. United States. This resulted in the court using a rational basis test instead of strict scrutiny to analyze the Plaintiff’s Equal Protection Claim. The court first held that the plaintiffs lacked standing to bring the case under the Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”). In turn the court used rational basis to analyze the Illinois Military Overseas Voter Empowerment Act ( Illinois MOVE”), and limited voting rights for many United States citizens living abroad. As a result, non-resident U.S. citizens are not receiving absentee ballots depending upon which U.S. territory they reside in. For instance, a U.S. citizen in the American Samoa can receive an absentee ballot but a citizen in Puerto Rico cannot. This arbitrary infringement of voting rights is based on the underinclusive definition of United States in the UOCAVA.
That said, the plaintiffs could have established they had a fundamental right to vote by arguing that they were citizens of Illinois. The Constitution clearly asserts that the fundamental aspect of voting is embedded in a person being a citizen of a state. Although, the Citizenship Clause of the Fourteenth Amendment states that a person is a citizen of the state where they reside, the definition of reside relates to domicile, and courts look to a person’s domicile to determine state citizenship. So, if a plaintiff had been able to establish they are domiciled in Illinois they would have a fundamental right to vote, and the infringement would be subject to strict scrutiny. Accordingly, the issues in Segovia of standing, or the rationality of Illinois MOVE would have been of little consequence. The arbitrary distinction between similarly situated U.S. territories like Puerto Rico and the American Samoa would not survive a strict scrutiny analysis, and it would likely result in voting legislation that properly addresses the right to vote for citizens in U.S. territories
Can Competition Considerations Trump Trademarks RIGHTS?
Get PDFCompetition law has in the past tended to see suspiciously the protection of trademark as directly opposed to the goals of competition law. As this paper shows this view has been abandoned and substituted by a more synthetic approach in which the goals of trademark law and competition law are not incompatible but may be pursued conjunctly. The paper discusses the importance and practical feasibility of striking a balance between competition law and trademark rights, with a specific attention to the specificities of trademarks. The paper will focus on the issue of the compatibility between the goals of trademark law and competition, and by analyzing the competition case law it provides a careful insight of how the balance is struck in the decisional practice. The paper shows that the “internalisation” of competition law considerations when dealing with trademark issues and vice versa certainly affects the reasoning of the courts. The choice of considering an issue from the point of view of either trademark law or competition law empowers the courts to address the same issue in a completely different manner and come to a different conclusion. It remains to be assessed whether, in future cases, the characterization of a case as an IP or a competition law case by the courts will also have a bearing, given the profound consequences for the structure of the analysis that is performed by the adjudicator, and, in turn, on the final outcome of the case of such a choice
Sanctuary Jurisdictions: In a System of Checks and Balances Who Has the Authority to Defeat Them?
Get PDFDuring President Trump’s campaign, he vowed to deport the “bad hombres”—all immigrants with serious criminal records. His administration, however, is deporting more than just Mexican “criminals, drug dealers, and rapists.” The Department of Justice, under President Trump, has aggressively enforced federal immigration laws, invoking great fear in immigrant communities across the nation. In response to this hardline position on immigration enforcement, several jurisdictions throughout the United States declared themselves “sanctuaries,” or reaffirmed their already in-place sanctuary status. Generally, sanctuary jurisdictions limit the enforcement of federal immigration laws against immigrants with strong ties to the community that have no serious criminal record. However, sanctuary policies vary from jurisdiction to jurisdiction.
Sanctuary jurisdictions have become a target because they threaten the Trump Administration’s immigration enforcement agenda. President Trump and former U.S. Attorney General Jeff Sessions had tried conditioning federal funding, attempting to force sanctuary jurisdictions to cooperate in the enforcement of federal immigration laws. At the intersectionality of a broken immigration system and the principles of separation of powers and federalism lies a very important question: does the Executive Branch have the power to do this.
Separation of powers is a core principle of this nation’s government. The framers of the U.S. Constitution specifically built a system of checks and balances to prevent any one branch from becoming too powerful. The U.S. Constitution leaves no doubt that the power of the purse belongs to Congress, and not the Executive Branch. While Congress can, it has not authorized the Executive Branch to condition federal grants in this manner. In fact, Congress has consistently refused legislation that ties federal funding to immigration laws. Plain and simple, President Trump and the U.S. Attorney General’s actions violated the U.S. Constitution’s principle of separation of powers. Multiple federal courts have found these orders at least partially unconstitutional on this ground, including the Seventh Circuit in its recent City of Chicago v. Sessions decision. The Seventh Circuit described the Executive Branch’s actions as a “usurpation of power.” Judge Rovner stressed, “We are a country that jealously guards the separation of powers, and we must be ever-vigilant in that endeavor.” I could not agree more with the Seventh Circuit: no one branch should have all that power. If the federal government wants state and local governments to enforce federal law, the branches must work together to pass non-xenophobic legislation that fixes our immigration system
Making Artificial Intelligence Transparent: Fairness and the Problem of Proxy Variables
No full textAI-driven decisions can draw data from virtually any area of your life to make a decision about virtually any other area of your life. That creates fairness issues. Effective regulation to ensure fairness requires that AI systems be transparent. That is, regulators must have sufficient access to the factors that explain and justify the decisions. One approach transparency is to require that systems be explainable, as that concept is understood in computer science. An system is explainable if one can provide a human-understandable explanation of why it makes any particular prediction. Explainability should not be equated with transparency. Instead, we define transparency for a regulatory purpose. A system is transparent for a regulatory purpose (r-transparent) when and only when regulators have an explanation, adequate for that purpose, of why it yields the predictions it does. Explainability remains relevant to transparency but turns out to be neither necessary nor sufficient for it. The concepts of explainability and r-transparency combine to yield four possibilities: explainable and either r-transparent or not; and not explainable and either not r-transparent or r-transparent. Combining r-transparency with ideas from the Harvard computer scientist Cynthia Dwork, we propose for requirements on AI systems