This Article presents a framework for analyzing searches of privately-owned and employer-owned cell phones by both public and private employers. For employee-owned cell phones, this Article argues that such devices are entitled to the greatest constitutional protection under relevant Fourth Amendment precedent, including Riley v. California, and are typically beyond the reach of the Fourth Amendment’s workplace exception, making them generally immune from search by public employers. Given the highly offensive nature of personal cell phone searches, this Article further argues that private employers would typically face liability in tort for most personal cell phone searches. Nevertheless, for both types of employers, this Article contends that limited searches of personal cell phones might be permissible if an employer has implemented a clear and narrow policy authorizing such searches, to which employees have voluntarily consented, that is itself justified by a legitimate business need to manage or review particular employment-related data contained within the phone.For employer-owned cell phones, this Article recognizes that employees often cannot expect privacy in such devices vis-à-vis their employers, particularly where an employer’s policy permits their inspection, making them more freely searchable by employers. Nevertheless, in cases where an employee could reasonably expect privacy in an employer-issued cell phone, as in certain instances where the employee is the exclusive user of the device, this Article argues that employers should conduct such searches in a reasonable manner. Accordingly, for either public or private employers, this Article argues that when an employer wishes to search an employer-issued device, the employer should ensure it has a strong business justification for the search, should limit its search to avoid accessing private information unrelated to the intrusion’s justifications, and should select the least intrusive means available for conducting the search. In the end, determining whether an employer may lawfully search or seize the contents of an employee’s cell phone must be done on a case-by-case basis. However, the principles identified in this Article will serve as helpful guides for employers and reviewing courts in specific cases.
Increasingly, scholars and students alike suggest that university leaders should engage in speech to oppose racism and other systemic discrimination—and in May and June 2020, countless university leaders across the country did exactly that, expressing solidarity with the Black Lives Matter movement. That speech also contained implied answers to two questions: normatively, should a public university speak in this way, and legally, can it do so? Developing a robust answer to the second question is the focus of this Article, which brings together political scientist Corey Brettschneider’s conceptualization of government speech as persuasive or coercive; federal constitutional law (forum analysis doctrine and government speech doctrine); and recent changes in state law regarding free speech and public colleges and universities.
In electoral politics, names matter. Studies and anecdotal evidence show that candidates whose names suggest a certain ethnic heritage—for example, an Irish-sounding surname in Chicago, or an Hispanic name in South Florida—outperform candidates without such names, and that “American-sounding” names and names with positive connotations can give candidates a leg up. Therefore, candidates for public office often seek to run under the name they regard as most advantageous electorally. Election boards, secretaries of state, and ultimately courts are often called upon to decide whether a particular candidate can run for office under a particular name. This article looks at various courts’ efforts to resolve legal challenges to a candidate’s eligibility to run for office under a particular name. Section I explains how different courts across the United States have resolved controversies over candidate names. Section II evaluates the various approaches reflected in the opinions discussed in Section I. Section III discusses what a workable and fair system of regulating candidate names would look like, eventually settling on the following proposed rule: candidates should be allowed to appear on the ballot under whatever name they want unless doing so would result in unnecessary confusion between two candidates or some kind of deception, fraud, or bad faith. Section IV explores the roles of various government actors in regulating candidate names, arguing that with clear legislative guidance, most controversies can be resolved by election boards and Secretaries of State, with court intervention available as a last resort.
The “ancient right” of self-defense is among the handful of criminal law areas that has received substantial academic (and increasingly public) attention, and deservedly so, given the foundational role it plays in criminal justice systems the world over. The current debate about over-policing, violence, and self-defense has vividly brought to the forefront the challenges inherent in setting boundaries between the state’s claimed “monopoly on force” and the individual’s right to deploy self-preferential violence against a purported attacker. But, as this Article points out, by overlooking the role values and value judgments play in guiding “just” self-defense outcomes, the bedrock analysis providing the starting point for this debate has been undermined by a lack of moral and analytical coherence. In the wake of George Floyd’s brutal killing, drawing the boundaries of appropriate self-preferential force has assumed a central role as society considers how the criminal justice system actually operates and where reform is most needed. This Article seeks to significantly advance that debate by introducing a new, value-centric method of addressing the toughest self-defense questions bedeviling commentators for hundreds of years and across all legal systems. For example, is self-defense best viewed as a justification or an excuse? Should a person mistaken about the facts be authorized to use self-defense? What is the relationship between “necessary” defensive force and “imminent threats?” When should a person be required to retreat from a conflict (or avoid it altogether)? How should the law treat innocent threats? And should deadly force ever be authorized to defend mere property? Although a tremendous amount of scholarly ink has been spilled on the various technical and instrumental aspects of self-defense, curiously, there has been little scrutiny given to the core questions of how, when, and why values should influence self-defense outcomes. The approach developed here is tethered to the recognition that justice systems, when confronted with self-defense claims, must always balance various competing interests (and values), including procedural justice and the need to shore up the justice system’s legitimacy and creditworthiness; the role of equal standing between citizens; everyone’s presumptive “right to life”; the presumptive primacy of the legal process; general and specific deterrence; and the state’s historical claim to a monopoly on force. But, as this Article lays bare, to date the scholarly discussion, legislative debate, and judicial decision-making have overlooked this broader array of competing values, focusing instead on technical and instrumental interests, or, to the extent discussed at all, on only one or two narrow values. As a result, justice systems, and those working within them and impacted by them, from the outset have been limited in their abilities to persuasively, transparently, and justly address crucial public perceptions of what amounts to “just” and “right” self-defense outcomes as well as the emphasis the legal system places (and should place) on state power. Self-defense scholars like Fiona Leverick, for example, narrowly focus on one outcome-determinative value when they contend that human life is inviolate, except in extreme situations involving fully culpable attackers threatening to kill their victim. The result is a proposed regime that is at odds with all known self-defense laws and would refuse a defender the right to use deadly force to prevent violent rape and all other forms of serious bodily injury short of death. The other side of the continuum is occupied by commentators like Robert Schopp who support “stand-your-ground” and “castle doctrine” laws grounded almost exclusively on protecting the autonomy of the individual defender. Supporters of such hard-edged views argue with equal passion for their respective positions when assessing prominent examples, such as George Zimmerman’s claimed right to self-defense in his deadly encounter with Trayvon Martin; Texas retiree Joe Horn’s shotgun killing of two men he suspected of burglarizing his neighbor’s home; and Travis McMichael’s taking of Ahmaud Arbery’s life while allegedly trying to effect a “citizen’s arrest” for a claimed trespass on a Georgia construction site. The position taken here is that all such hard-edged approaches are fundamentally flawed because they for no good reason elevate one or two narrow values to the exclusion of all others.As these in-the-public-consciousness examples amply demonstrate, the absence of a truly value-centric self-defense dialogue has resulted in a weak methodology for meaningfully tackling a critical criminal justice issue in a manner that is transparent, democratic, and sustainable. In the face of the various recent—and deeply unfortunate—high-profile incidents referenced above, thoughtful people within and outside the halls of academia have had occasion to pause and think more deeply about self-defense’s underlying rationale. The present undertaking is designed to fortify this effort.This Article’s admittedly ambitious aim, then, is to dust off the existing approaches (some of which have been dominating the narrative for centuries), hold them to the contemporary light, and suggest that there is a better way of conceiving the doctrine of self-defense, specifically, and the limits on state power, more generally. Closely examining peoples’ blend of deeply personal views on a range of competing values allows us to understand why the same set of facts may be applauded as justified self-defense in one legal culture or region of the country, while derided as criminal (or even barbaric) in another. And this open discussion about the central role value judgments play in assessing self-defense claims, in turn, encourages more democratic and transparent legislative and judicial decisions and commentary. Such a process promises to yield outcomes with staying power because they will have been reached not on the basis of hidden normativity and false dichotomies but rather through an all-things-considered analysis of values, and the relative weighting of these values, deemed relevant in each challenging self-defense case where rights and interests lock horns.
This Article confirms what many dispute resolution professionals have long feared - that alternative dispute resolution (ADR) processes, such as mediation and arbitration, are still not well understood by the general public. This paper provides the results of an empirical study on whether the public and ADR professionals understand key features of these processes. While the study generally supports the hypothesis that dispute resolution professionals have similar understandings of what these processes are, the lay sample uncovered key misunderstandings. These misunderstands have serious ethical implications for lawyers, courts, and dispute resolution professionals. Given the importance of informed decision-making, the authors recommend increased communication with clients about alternative processes and how those processes may meet client needs.
In this article, we explore the criminal liability that adheres to individuals and organizations as well as the development of criminal statutes in this domain. Also, we grapple with member, chapter, and national organization civil liability as well as university and university staff civil liability. This article is part of a series of articles that have tried to make sense of the underlying factors that undergird and propel hazing. It also serves as a basis for a book trilogy I am currently working on about hazing—its roots and solutions.
In the wake of the 2016 US Presidential election and similar developments parts of Europe, commentators widely acknowledged the rise of populist movements on both the right and left of the political spectrum that both were deeply suspicious of big business. This development potentially has important implications for the law and practice of corporate purpose. Left of center corporate social responsibility campaigners have long advocated the use of “boycotts, shareholder activism, negative publicity, and so on” to pressure corporate managers to act in ways those campaigners deem socially responsible. Right of center populists could use the same tactics to induce corporate directors to make decisions they favor. The question thus is whether they are likely to do so based on their historical track record. Assuming for the sake of argument that right-of-center populists begin focusing on corporate purpose, the question arises whether modifying the shareholder wealth maximization norms so as to give managers more discretion to take the social effects of their decisions into account would lead to outcomes populists would view as desirable. Populists historically have viewed corporate directors and managers as elites opposed to the best interests of the people. Today, right of center populists find themselves increasingly at odds with an emergent class of social justice warrior CEOs, whose views on a variety of critical issues are increasingly closer to those of blue state elites than those of red state populists.
The immigration rule of lenity has haunted immigration jurisprudence since its initial iteration in 1947. But as with any spectral entity, its existence is more ephemeral than real. The rule was meant to be a tie-breaker of sorts, a canon that where a provision of the immigration laws was ambiguous, the courts should impose the more lenient construction. It has never, however, been the dispositive basis for a holding of the Supreme Court. Rather, to the extent it has been referenced, it has been trotted out only as a rhetorical device to sanction a decision reached on other grounds. Even this rhetorical role has been called into question with the advent of Chevron deference. The raison d’etre of the rule was to provide the basis of decision when the court was confronted with two equally plausible interpretations of a statutory provision. Chevron now fills that gap, and there seems no room left for the immigration rule of lenity in modern administrative law. Rather than continue to allow this outmoded rule of decision to stalk argumentation in immigration cases, the Supreme Court should simply euthanize and inter the rule at the earliest opportunity.
In American Legion v. American Humanist Association, the Court addressed the Establishment Clause issues surrounding a longstanding Latin cross veteran's memorial located on public property. Although the Court upheld the memorial with a narrow ruling, an unresolved issue lurking beneath the surface of passive display cases like American Legion is whether a government dismantling of a long-standing religious symbol might itself, under certain circumstances, constitute an independent Establishment Clause violation. Such a dismantling of a religious symbol built decades earlier, before the property became publicly owned, might well be considered a government act hostile to religion, especially as American becomes increasingly secular and government actors demonstrate increasing hostility to religious institutions and beliefs. Given the continual drift toward secularism in American society, this Article uses the decision in American Legion to explore the question of whether government exclusion of religions from the public square in favor of a secularism baseline violates the neutrality doctrine and constitutes its own Establishment Clause infringement. The Court has never ruled that a government exclusion of religion violates the First Amendment, but as American Legion demonstrates, the necessity of such a ruling may well arise in the future.
The curtain of secrecy that tightly envelops college sports makes it difficult for athletes to blow the whistle on abusive conditions without fear of suffering retaliation. The seemingly obvious recourse for a player who distrusts the internal complaint process – to take the complaint public – is foreclosed at many colleges, because athletes are forbidden from speaking to the media without approval from the athletic department. Is this legal? Can a public institution enforce a categorical prohibition on speaking without running afoul of the First Amendment? Despite the widespread perception of university athletic departments, the answer almost certainly is “no.” This article augments the growing body of scholarship about athletes’ rights by focusing on one particular and largely overlooked right: The right to speak freely to the news media. The article concludes that athletes’ right to discuss issues of public importance – including issues about the safety and integrity of the athletic program – is protected by the First Amendment at state universities, but is routinely being infringed at institutions across the country. The right to speak to the media is foundational to athletes’ ability to blow the whistle on wrongdoing and safety hazards within their own teams, which might otherwise go unaddressed. The article analyzes the potential legal theories that a university might offer in defense of a blanket prohibition on unauthorized communication with the news media: That athletes have diminished free-speech protection because they are employees or because they are students, or that athletes voluntarily waive free-speech rights as part of the contractual bargain for receiving scholarships and other material benefits. The article finds neither theory convincing, demonstrating that neither constitutional law nor contract law provides a defensible basis for enforcing a mandatory-approval regimen before athletes may speak with journalists.The article concludes with recommendations for reforming constitutionally dubious media policies across the college athletic world.
