When our home institution moved all instruction online in response to the global pandemic, we began redesigning our business law survey course from scratch. Specifically, we decided to use the popular docuseries Tiger King: Murder, Mayhem, and Madness to explore the legal and ethical environments of business with our undergraduate students. We deliberately chose this surprise-hit TV show in order to make our online course as relevant, timely, and engaging as possible. The remainder of the paper will describe the contents of each module of the course, explore their relation to Tiger King, and explain the logic of our design choices.
Government lawyers regularly leave public service for private law practice — often through the same revolving door that launched their public careers. The law firms they join or to which they return welcome them because of the experience they gained, and the expertise they developed, while in the government. The challenge for former government lawyers and their law firms is recognizing and managing conflicts of interest that sometimes arise out of lawyers’ government service. To address the special conflict of interest concerns that emerge from the revolving door of government service, the ABA formulated Model Rule 1.11. With a single exception, Model Rule 1.11 displaces other ethics rules that generally govern conflicts of interest in lawyers’ successive representations. In so doing, Model Rule 1.11 attempts to balance the competing interests in play when a matter spans a lawyer’s government service and private practice. Most conflict of interest controversies involving former government lawyers pivot on the scope of the matter that is alleged to be the source of the conflict, and the degree of the lawyer’s participation in the matter. To a lesser but nonetheless critical extent, former government lawyers’ alleged acquisition of confidential government information also spawns disputes. Whether former government lawyers should be disciplined or disqualified for conflicts of interest tied to their public service always requires case-specific inquiry. Avoiding discipline and disqualification, and further avoiding imputed disqualification of the lawyer’s law firm, requires former government lawyers and their law firms to understand and to be able to navigate the uniqueness of Model Rule 1.11. This article provides a practical guide for doing so.
Would you like students to read more before class? Read more deeply and critically? Help each other do that? Would you like a window into their thoughts, interests, and questions while they read? The ability to respond to them in real-time? Then read on. Would you like more control over your course material? Stop hopping around the casebook? Speak directly to your students in their readings? Make their legal education more affordable? Then continue. This essay relates my early experiences in adapting an open-source (free of charge) book to my Property course and having students read it using a collaborative online platform called Perusall. While I believe this will particularly interest Property teachers, I also think it useful for anyone, teaching any course, intrigued by the questions above.
The rules adopted by federal administrative agencies are influenced substantially by the politics of the President. So, when Presidents change, the rules and policies of agencies often change. However, agencies are not merely the President’s political playthings. Basic principles of administrative law limit the President’s ability to change rules for purely political reasons. For instance, a rule that has been adopted through notice and comment rulemaking can only be repealed or changed through notice and comment rulemaking. In addition, when an agency changes a rule, the agency must rationally explain why it is changing the rule and must provide a reasoned explanation whenever it disregards facts and circumstances that underlay or were engendered by its prior rule. In light of those restrictions, when an agency runs the procedural gauntlet of notice and comment rulemaking and adopts a rule that is within the agency's statutory authority, a reasonable exercise of discretion, based on agency expertise, and supported by a strong factual record, it is very difficult to repeal the rule solely on political grounds, especially if the attempts to repeal the rule come shortly after the rule was initially adopted. While the current Administration has been very aggressive in attempting to repeal or replace rules from the last Administration, especially in the environmental arena, it has routinely failed to comply with the requirements for repealing and replacing those rules, so courts have repeatedly struck down the Administration's efforts to roll back those rules. While federal agencies historically have prevailed in about 70% of the cases brought against them alleging violations of the Administrative Procedures Act, agencies in the current Administration only prevailed in about 6% of the de-regulatory cases decided in the first two years after the President took office. This article illustrates the manner in which the administrative law checks and balances work to limit a President's ability to change a rule based on purely political factors. It focuses on the rule adopted in 2015 by the Environmental Protection Agency and the U.S. Army Corps of Engineers to define waters of the United States under the Clean Water Act and the three rulemaking efforts initiated after the change in Administration in 2017 to repeal and replace the rule. The article discusses the procedural and substantive flaws in the three rulemaking efforts. One or more of the rules, or the 2015 rule itself, will be litigated for the next several years and it is likely that the question of the scope of the federal government's jurisdiction over waters of the United States will ultimately return to the Supreme Court for a fourth time. Consequently, the article concludes with a brief discussion regarding the potential resolution of the issue by a Supreme Court that looks much different than the Court that last addressed the issue in 2006.
This Essay forms the basis for the 2019 Richard J. Childress Memorial Lecture, to be delivered at St. Louis University in October 2019. About a decade or so ago, the major questions in the field of election law were familiar to scholars and centered on the Supreme Court, including the constitutionality of corporate spending limits in candidate campaigns, the constitutionality of the preclearance provision of the Voting Rights Act, and the constitutionality of strict state voter identification laws. While issues related to these cases continue to churn in the courts and remain of vital importance to American democracy, some of today’s most urgent election law questions seem fundamentally different and less Court-centric than those of the past, thanks to rapid technological change during a period of hyperpolarization that has called into question the ability of people to separate truth from falsity. These questions include: What can be done consistent with the First Amendment and without raising the risk of censorship to ensure that voters can make informed election decisions despite a flood of virally-spread false and misleading speech, audio, and images? How can the United States minimize foreign disinformation campaigns aimed at American elections and attempts to sow social discord via bot armies? How can voters obtain accurate information about who is trying to influence them via social media and other new forms of technology? How can we expect judges to evaluate contested voting rights claims when they, like others, may live in information cocoons in which the one-sided media they consume affects their factual priors? Will voters on the losing end of a close election trust vote totals and election results announced by election officials when voters are bombarded with conspiracy theories about the reliability of voting technology and when foreign adversaries target voting systems to undermine confidence? This Essay considers election law in the post-truth era, one in which it has become increasingly difficult for voters to separate true from false information relevant to election campaigns. Rapid technological change and the rise of social media have upended the traditional media’s business model and radically changed how people communicate, educate, and persuade. The decline of the traditional media as information intermediaries has transformed—and coarsened—social and political communication, making it easier for misinformation and vitriol to spread. The result? Political campaigns that increasingly take place under conditions of voter mistrust and groupthink, with the potential for foreign interference and domestic political manipulation via new and increasingly sophisticated technological tools. Such dramatic changes raise deep questions about the conditions of electoral legitimacy and threaten to shake the foundation of democratic governance. Part II of this Essay briefly describes what I mean by the “post-truth” era in politics. Part III examines the effects of the post-truth era on campaign law, arguing for a new law requiring social media to label as “altered” synthetic media, including so-called “deep fakes.” I defend such a law as necessary to support the government’s compelling interest in assuring voters have access to truthful political information. Part IV considers campaign finance law, arguing for campaign disclosure laws requiring those who use online and social media to influence voters, including those using bots and other new technology, to disclose their true identities and the sources and amounts of their spending. Part V considers the difficulty of using courts to adjudicate voting rights claims when there is fundamental disagreement about the basic facts related to issues such as voter fraud in our hyperpolarized, cocooned political environment. The Essay concludes with some thoughts on whether election law is up to the task of dealing with technological change and polarization which threaten some of the key suppositions of how democracy is intended to function, including as an aid to the peaceful transition of power.
COVID-19 permanently changed the way places of public accommodation like restaurants, theaters, medical facilities, arenas, gyms, and many other proprietors of mainstream American activities must operate in order to accommodate people with newly-defined, COVID-19-related disabilities under Title III of the Americans with Disabilities Act (ADA). The required modifications will affect all patrons and employees of these establishments. Under the ADA, places of public accommodation are barred from discriminating against people with disabilities in the full and equal enjoyment of goods, services, and facilities. Infectious diseases like tuberculosis and HIV have been categorized as disabilities under the ADA, and COVID-19 is defining new categories of individuals with disabilities (including individuals vulnerable to COVID-19 complications) as revealed in this paper. Places of public accommodation will be required to establish non-discriminatory methods to identify “direct threats,” to modify policies and procedures for COVID-19-related disability groups identified here, and remove structural barriers that discriminate against those same groups. Controversial measures like fever checkpoints, mandatory face masking, and required social distancing are discussed in depth and analyzed in light of the ADA’s requirements.
The United States Census Bureau counts the number of inhabitants in the United States every ten years. That census leads to the allocation of seats in the House of Representatives based on the total population of each state. And the states draw new congressional districts for the decade ahead, districts with equal numbers of inhabitants in them. These tasks are ostensibly simple and straightforward. They are designed for electing members to the House of Representatives. But congressional districts serve many other functions, electoral and non-electoral, which may operate below the surface — some of which are common knowledge if we only think about them and some of which we may be unaware of. Congressional districts, then, are something of a chameleon. They take on a different hue depending on their context, from how political parties go about choosing a presidential nominee to how the military academies fill out their classes. This Essay reflects on some of the alternative roles congressional districts serve and whether they ought to serve such roles.
Women have been attending law school at approximately equal rates as men for decades and began comprising a greater percentage of law school entrants than men in 2016. Yet, men continue to hold a solid majority of leadership positions across the legal field: from seats on judicial benches to podiums in front of law school classrooms. This paper examines one under-evaluated, yet critical gender gap within the legal profession: legal scholarship—specifically legal scholarship published by the flagship law reviews at the top twenty law schools. This article presents original research demonstrating that law reviews might be perpetuating the law professor gender gap because, for the five-year period studied, the law reviews published, on average, twice as many articles with male authors than with female authors. Based on this evidence, this article highlights points along the article review process that could be subject to implicit biases and suggests ways for those biases to be noticed and minimized. Who gets to speak and whose ideas are heard, matters. Currently men get to speak, and be listened to, more than women in legal scholarship.1 This article seeks to demonstrate why this should, and how this can, concretely change. 1. Nancy Leong, Discursive Disparities, 8 FIU L. REV. 369, 370 (2013) (“Concretely, the [discursive] disparity has negative consequences for women’s lives, careers, and personal wellbeing. More broadly, the disparity distorts our discourse by conforming that discourse to male perspectives.”). SAINT LOUIS UNIVERSITY SCHOOL OF LAW 200 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 65:199
The COVID-19 work stoppages involving employees refusing to work because they are fearful of contracting coronavirus provides a dramatic opportunity for newer workplace law observers to grasp a well-established legal rule: both unionized and non-union employees possess rights to engage in work stoppages under the National Labor Relations Act. This article explains that employees engaging in concerted work stoppages, in good faith reaction to health and safety dangers, are prima facie protected from discharge. The article carefully distinguishes between Section 7 and Section 502 work stoppages. Crucially, and contrary to Section 502 work stoppages, the health and safety-related work stoppages of non-union employees, protected by Section 7, are not subject to an “objective reasonableness” test. Having analyzed the general legal protection of non-union work stoppages, and noting that work stoppages have been on the increase during the last two years, the article considers when legal protection may be withdrawn from such concerted activities because employees repeatedly and unpredictably engage in them—so called “unprotected intermittent strikes.” Discussing a recent NLRB decision, the article argues for an explicit and strengthened presumption of work stoppage protection for employees who are wholly unaffiliated with a union, even when those employees engage in repeated work stoppages in response to discrete workplace disputes or dangers. Next, the article grapples with looming work stoppage issues emerging from expansion of the Gig economy. When workers are not “employees,” peaceful work stoppages may become increasingly subject to federal court injunction. The Norris-LaGuardia Act (the venerable 1932 federal anti-injunction law) does not by its terms apply to non-employees, possibly including putative non-employee Gig workers, raising the specter of a new era of “Government by Injunction.” Under existing antitrust law, non-employee workers may be viewed as “independent businesspeople” colluding through work stoppages to “fix prices.” The article argues that First Amendment avoidance principles should guide Sherman Act interpretation when non-employee worker activity does not resemble price fixing; and that, consistent with liability principles articulated in the Supreme Court’s recent opinion in Sessions v. Dimaya, antitrust law’s severe penalties should not be applied to Gig workers given the ambiguities in federal and state law employee definitions. Finally, the article considers the potential for non-union private arbitration agreements exercising restraints on the NLRA rights of employees to engage in work stoppages in light of the Supreme Court’s labor law-diminishing opinion in Epic Systems.
