Congress's chosen remedy for the proliferation of online revenge porn has a design flaw. The Violence Against Women Reauthorization Act, codified in 15 U.S.C. 6851, provides a civil right, enforceable in federal court, to victims of nonconsensual pornography. However, exceptions for matters within the "public concern," written into the statute with the First Amendment in mind, weaken the force of the Act and threaten to make its proscriptions a nullity. This Note calls on Congress to narrow the public concern exception in the Violence Against Women Reauthorization Act to include only matters of political significance. Such an amendment will honor the First Amendment's guaranty of free speech and ensure that evolving notions of newsworthiness do not work to burden those seeking relief under the Act.
This Article rethinks the functions and functioning of litigation booms. Using an original data set that tracks Fair Labor Standards Act cases during the 2000-2016 period, the Article shows that booms are not anomalies but are instead an expected behavior in our distributed system of civil law enforcement. Specifically, plaintiffs and their lawyers "herd" or converge on a particular type of case, fueled by information transmitted via networks, made available to the general public, or both. The data also reveal that booms can end on their own, reaching a natural tipping point without legislative or judicial retrenchment. This analysis has normative implications, suggesting that litigation-suppressing legislative or judicial intervention may not always be necessary, though tweaks to system design could achieve more efficient outcomes and more equitably distributed access to legal representation.
For years, minor league baseball players received salaries far below the federal minimum wage, despite working sixty hours per week. It was not uncommon for these professional athletes to share cramped hotel rooms, sleep on floors, or live out of their cars. Most had to secure loans and pursue odd jobs to make ends meet during the offseason. Such sacrifices were necessary for minor leaguers to achieve their dreams of reaching the major league level, particularly as those abysmal working and living conditions became entrenched by adverse legislation and judicial rulings. Only within the last five years have minor leaguers experienced material improvements in pay and working conditions, thanks primarily to the first-ever unionization and ensuing collective bargaining agreement in minor league baseball history. But they have yet to reach home plate. Recent actions from Major League Baseball, most pertinently, its revamp of the minor leagues in 2020, evince its intent to remove Major League Baseball affiliation from up to half of minor league teams upon expiration of that collective bargaining agreement. The resulting circumstances for players and teams stripped of their major league affiliation-that is, those who have been "contracted"-largely mirror the circumstances of minor league baseball's pre-union "dark days." This Note defends against Major League Baseball's unilateral, capital-driven action by arguing that the number of affiliated minor league teams constitutes a mandatory subject of bargaining under the National Labor Relations Act. Beyond offering the Major League Baseball Players Association a new pitch in its arsenal to advocate for overturning baseball's historic antitrust exemption, a ruling that contraction is a mandatory bargaining subject is necessary to ensure the continued viability of minor league baseball.
American zoning is under attack on multiple fronts. The concerns of zoning's many critics range from social and racial justice, to private property rights, to the extreme shortage of affordable housing, to climate-change resilience and sustainability. A growing number of voices have called for, at a minimum, the elimination of single-family zones; some even champion the abolition of this ubiquitous method of American land use regulation. This Article is the first detailed look at what would happen if zoning's critics got their way. The most efficient means for erasing zoning from American law would be for the U.S. Supreme Court to find it unconstitutional, so this Article features excerpts from three fictitious Supreme Court opinions that reflect the jurisprudence of today's iteration of the Roberts Court. Unfortunately for those who see the elimination of zoning as a magic bullet for many of society's ills, a judicial declaration that zoning violates the protections afforded by the Due Process, Takings, Equal Protection, and Contracts Clauses would only result in the re-creation of some of zoning's most problematic aspects, bringing American society back to square one. Moreover, eliminating classic ("Euclidean") zoning would invalidate modern modifications that respond to current socioeconomic and environmental conditions. Rather than waving goodbye to zoning, this Article offers four achievable steps that local and state governments can take today to continue the longstanding process of adapting zoning (the good and the not-so-good) to changing realities.
Popular resistance to the weaponization of government has eroded in America. On the political Right, the post-Reagan consensus favoring limited government has given way to a new generation of leaders-like Vice President J.D. Vance and Florida Governor Ron DeSantis-who openly advocate for using state power against their political opponents. Collectively they are the New Right: a populist, antiestablishment, conservative movement opposing pluralistic systems, institutions, and cultural elites. While both political liberals and conservatives have wielded state power against their adversaries, leveraging state power to reward friends and punish enemies is fundamental to the New Right's worldview. Following German jurist Carl Schmitt's political theory, the New Right frames government as a tool for waging cultural and political battles. In this environment, politicians explicitly declare their intent to retaliate against critics for exercising their First Amendment rights, yet their official retaliatory actions often escape judicial scrutiny by maintaining facial neutrality. Current First Amendment retaliation doctrine, complicated by the principle set forth in United States v. O'Brien, is ill-suited to address this movement. The O'Brien principle holds that courts cannot invalidate an otherwise constitutional statute solely based on alleged improper legislative motives. This Note critiques O'Brien's rigid framework while offering one of the first analyses of National Rifle Association of America v. Vullo, where Justice Ketanji Brown Jackson's concurrence offered First Amendment retaliation doctrine as a possible analytical framework for the government retaliation in that case. Drawing on the factors established in Village of Arlington Heights v. Metropolitan Hosing Development Corp., this Note proposes a more holistic approach to retaliation claims that considers both government actions' effects and officials' statements in uncovering retaliatory intent. By reconsidering the application of O'Brien, this Note aims to safeguard free speech against the backdrop of a political environment increasingly characterized by the strategic use of state power for partisan purposes.
