On September 30, 2019 California Governor Gavin Newsom signed into law the Fair Pay to Play Act (FPTPA), allowing student-athletes to hire agents and financially benefit from their college sports activities by permitting commercialized use of their name, image, and likeness (NIL). California’s law circumvented the NCAA’s historic injunction on student-athletes receiving compensation outside scholarships; however, after its passage the NCAA reformed its stance to allow student-athletes to profit from the use of their NIL. With the NCAA’s approval, and with numerous states pushing forth similar legislation to that of the FPTPA, the face of college sports is changing. However, as quickly as the NCAA transformed its posture on student-athletes being compensated, the term tax emerged. Once student-athletes earn income under the FPTPA, they must become familiar with complicated tax filing and payment obligations that may result in adverse and unexpected consequences. This article provides a history of the pay-for-play debate in college sports, analyzes the intricacies of the FPTPA, introduces applicable tax considerations at the federal and state levels that may impact student-athletes, and makes recommendations to better educate and protect student-athletes’ financial interests.
With Outer Space becoming increasingly crowded and more susceptible to conflicts, the need for a comprehensive legal regime to resolve international disputes grows. This Article contributes to this area of law by constructing a decision-tree that can determine which authority should have the jurisdiction to resolve a specific incident based on the case’s particular facts and circumstances. In order to effectuate this model, the Article also proposes setting the Outer Space boundary at 80 kilometres above mean sea level along with the creation of a “Transitionary Outer Space Zone” (“TOS Zone”) between 80 kilometres to 100 kilometres to address concerns against setting a firm demarcation line. In this TOS Zone, all countries shall have the freedom to operate as long as their activities do not unduly burden the country below such zone. Through these solutions, the Article hopes that some of the unknown risks associated with Outer Space activities can be removed — enabling all parties to better understand how disputes might be resolved as they come up.
In the history of the United States Supreme Court, 1937 was a huge year—perhaps the Court’s most important year ever. Before 1933, the Supreme Court sometimes held that progressive policies enacted by political branches of government were unconstitutional. Such decisions became much more prevalent during President Franklin D. Roosevelt’s first term, 1933-1936. In those years, the Court struck down, often by narrow margins, both federal “New Deal” laws and state law counterparts that sought to combat the devastation of the Great Depression. Then President Roosevelt, in early 1937, proposed to “pack”—to enlarge—the Court, so that it would become supportive of New Deal laws. Within weeks, the Supreme Court changed course, announcing broader constitutional interpretations of federal and state government legislative powers. The Court’s switch took the air out of the Court-packing balloon. The change was—and here is the quip that everyone knows—“the switch in time that saved nine.” That line appeared in 1937. It was repeated by many, especially in Washington. It has been quoted ever since. Just who coined it has been debated and never established. Until now.
Due diligence—the notion that international law includes a duty to cease and remedy damage that emanates from a State’s territory—has been proposed as an international legal measure to temper destabilizing effects of harm from cyber infrastructure. Yet the extent to which States, particularly the United States, accept due diligence as either a principle of general international law or as a rule of conduct applicable to the context of cyberspace is not clear. This Article examines past and present U.S. experience with due diligence, both as a principle and rule of conduct in general international law. In light of U.S. foreign relations history, a trend toward acceptance among allies and partners, and clear utility to State relations in cyberspace, we argue for renewed acceptance by the United States of the general principle of due diligence and its specific application to cyber operations.
While data laws were given a seat with older, relationship-based health law such as tort duties, they are not seen as a crucial part of the modern healthcare regulatory system and viewed only from a distance when healthcare history and policy are discussed. However, here we argue that our healthcare data laws have a closer relationship to the healthcare law mothership than often portrayed (and that is not necessarily a compliment). The core proposition that we advance is that there is (or should be) a hydraulic relationship between healthcare and health privacy. First, if health care continues to robustly prohibit health discrimination and continues to grow closer to universal access, the need for health data protection should decrease. This is not because privacy declines as a value but because exposures of health information will be less consequential. Second, it is broadly accepted that the U.S. imprudently spends a considerably larger percentage of its “health dollars” on clinical health rather than public health. The outsized role of social determinants, zip-code health, and institutionalized health inequities has been accentuated during the COVID-19 pandemic. Public health recognizes solidarity, social and health interdependence as a fundamental tenet. As the recovery from COVID-19 begins and we “rebuild better,” public health and hence solidarity likely will be strengthened. Third, the movements towards universal access and more vibrant public health are likely to be premised on a shift away from health individualism to solidarity. As this shift slowly develops, it is likely to engender more sharing of personal information in order to improve the overall health of the population.
The War on Drugs profoundly eroded the Fourth Amendment. D.C. Circuit Court of Appeals Judge Harry T. Edwards summed it up in the midst of the war when he expressed “[his] growing concern about the degree to which individual rights and liberties appear to be falling victim to the Government’s ‘War on Drugs.’” So many of the Court’s Fourth Amendment decisions involved drugs and consistently shrank basic protections. Recent develops suggest that a broad coalition now recognizes that the War on Drugs was a failure. Indeed, legislation like the First Step Act, passed by this extraordinarily dysfunctional Congress, is a measure of that consensus. If the War is over or ending, will the Court breathe life back into the Fourth Amendment? Again, Judge Edwards raised the question in 1990, when he stated, “. . . when the war is over, we find that departures from constitutional norms, legitimized by the courts, have lasting and wide-ranging effects. Constitutional principles, once abandoned, are not easily reclaimed.” This article explores that question. This article reviews several areas where the post-Warren Courts eroded the Fourth Amendment, especially in response to the War on Drugs. It then turns to some more recent Supreme Court cases breathing some life back into the Fourth Amendment, including in areas involving modern technology. It then turns to several developments in state courts, especially in states that have legalized marijuana for medical or medical and recreational use. Those courts, whether by interpreting the Fourth Amendment or parallel state constitutional provisions, have started to rethink the War on Drugs. Both the Supreme Court’s expanded Fourth Amendment case law and the trend, if I am right that it is a trend, among state courts to reinvigorate Fourth Amendment protections, may undercut Judge Edwards’ prediction that the War on Drugs’ erosion of the Fourth Amendment will not be easily reclaimed.
This Article argues that the fraught debate about the role of stare decisis cannot depressurize unless and until the focus of its application shifts away from baroque analysis of judicial erudition and towards the ways in which normative expectations of society have adjusted, and continue to adjust, to precedent. The Article proceeds in two parts. It first explains the role of stare decisis in the American legal system. It then observes how Allen v. Cooper, 140 S. Ct. 994 (2020), offers an exemplar in decision-making on the application of stare decisis. The decision demonstrates less concern for judges qua judges, according greater attention instead to how people are impacted by the prospect of overruling a decision. No one wants to be a sucker. Certainly not judges. Nor pirates. To these ends, adjusting the telescopic lens of stare decisis to accentuate norms-based, public concerns avoids consigning litigants and the public writ large to something even worse than being a sucker — an afterthought.
For decades, the Title IX process of adjudicating campus sexual assault has been heavily weighted against complainants (usually women). However, at some universities, this weighting has recently flipped, such that Title IX procedures at these institutions now seem weighted not against complainants, but against respondents (usually men). This “reverse Title IX” trend is typically described as an overcorrection, stemming from schools’ over-zealous attempts to comply with the Title IX requirements the Obama Administration imposed in 2011. This Article offers a different account of Title IX’s procedural flip. It argues that Title IX’s procedural switch can be productively viewed through the lens of discriminatory dualism. Discriminatory dualism posits that structural discrimination frequently divides into two seemingly opposite—but in fact mutually supportive—strands. Applying the theory of discriminatory dualism here suggests that reverse Title IX is not a mere overcorrection. Instead, it is part of a patterned, recurring, and common way that structural discrimination upholds existing social hierarchies. Echoing other examples of discriminatory dualism, Title IX’s twinned procedural problems work to sustain existing gendered and social hierarchies in three main ways. First, procedural unfairness to respondents functions to “confirm” the stereotype underlying the initial procedural problems with Title IX: that women are not credible witnesses and are committed, at all costs, to punishing men for perceived slights and imagined harms. Second, the emergence of the reverse Title IX strand undermines the complaints about unfairness to complainants, suggesting that they are misplaced and that the “real” problem is discrimination against men. The confusion created by these dueling complaints undermines the legitimacy of the Title IX system of adjudication as a whole, rendering all findings potentially suspect. Finally, Title IX’s discriminatory dualism creates a double bind, under which universities are portrayed as only capable of adjudicating in ways that are either unfair to complainants or unfair to respondents. These consequences all work to the detriment of those seeking gender equality.
