Brooklyn Law Review
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Open Access journal
ISSN (Print) 0007-2362
Published by Brooklyn Law School [4 journals]
- Between the Hash Marks: The Absolute Power the NFL’s Collective
Bargaining Agreement Grants Its Commissioner
Authors: Eric L. Einhorn
Abstract: The National Football League has recently faced an onslaught of public criticism stemming from its handling of disciplinary matters over the last few years. This note engages in a comparative analysis of the disciplinary processes of the four major professional sports leagues, the National Football League (NFL), National Basketball Association (NBA), Major League Baseball (MLB), and National Hockey League (NHL), to determine why Commissioner Goodell’s disciplinary decisions have received such public criticism and have been challenged by the National Football League Players Association. While examining the cases of Tom Brady and Adrian Peterson, this note will address the question of whether Commissioner Goodell is acting outside the scope of his authority ordained by the NFL’s collective bargaining agreement (CBA), or if the language of the CBA, that grants Goodell such authority, is the source of the NFL’s flawed disciplinary process. In attempting to determine the source of the NFL’s flawed disciplinary process, Part I provides a brief history of the development of the four major leagues’ CBAs. Part II discusses the NFL CBA specifically, and the particular provisions that have caused issues in recent years. Part III examines how the NBA, MLB, and NHL, have deployed their CBAs in comparison to that of the NFL. Part IV proposes a change to the disciplinary process that limits the Commissioner’s power as the League’s sole disciplinarian when dealing with on-field player conduct or conduct deemed detrimental to the game of football. Such limits will provide players with a higher level of fundamental fairness in the appeals process.
PubDate: Thu, 12 Jan 2017 11:52:56 PST
- If We Don’t Bring Them to Court, the Terrorists Will Have Won:
Reinvigorating the Anti-Terrorist Act and General Jurisdiction in a
Authors: Stephen J. DiGregoria
Abstract: Prior to the Supreme Court's recent general personal jurisdiction decisions in Daimler AG v. Bauman and Goodyear Dunlop Tires Operations S.A. v. Brown American terror victims, injured in terror attacks abroad, were able to bring their attackers and those who sponsor them into United States courts for relief. Specifically, groups like the Palestine Liberation Organization (the PLO) and the Palestinian Authority (the PA) had a history of being sued by American victims of terror. In the course of these suits, the PLO and the PA were regularly found subject to the personal jurisdiction of U.S. courts under a theory of general personal jurisdiction based on their "continuous and systematic" contacts with the United States. In Goodyear and Daimler, the Supreme Court raised the threshold to exercise general personal jurisdiction from "continuous and systematic" to "essentially at home." Based on this more exacting standard, district courts have been dismissing terror cases against the PLO and the PA with prejudice due to a lack of personal jurisdiction over defendants. Before this change, cases against the PLO and the PA regularly proceeded. These dismissals have a res judicata effect and consequently American terror victims have no avenue for recourse at home. Focusing on congressional intent as presented in the Anti-Terrorism Act of 1992 and public policy considerations that militate towards the protection of American terror victims, this note suggests two solutions to plugging this hole in general jurisdiction law. First, lower federal courts could treat cases against the PLO and the PA, which are categorized as unincorporated associations or non-sovereign state organizations, as cases of first impression in the general jurisdiction context. The Supreme Court has only specifically applied the concept of general jurisdiction to individuals and to corporations. Second, and more convincingly, Footnote 19 in Daimler suggests there may be an "exceptional case" where a defendant is not "at home" in a forum for general jurisdiction but may be subject to that court's general jurisdiction nonetheless. U.S. courts should treat terror cases against organizations such as the PLO and the PA as "exceptional cases" and exercise general personal jurisdiction against those parties who injure Americans through their terror activities. Not allowing these terror cases to proceed serves only to further injure Americans who have already been harmed enough through terror activity abroad.
PubDate: Thu, 12 Jan 2017 11:52:52 PST
- The New York Pharmaceutical Cost Transparency Act: How a Narrow View of
the Prescription Drug Pricing Puzzle Renders a Well-intentioned Bill
Authors: John G. Curran
Abstract: Pricing prescription pharmaceuticals is a complex process that entails the consideration of a multitude of factors, not the least of which is the research and development expenditure exhausted by drug makers to gain FDA approval. While public sentiment has increasingly turned against the pharmaceutical industry due to its perceived greed as manifested in the high cost of its drugs, the intricacies of pricing such unique products is rarely discussed. A recently proposed New York state bill, the Pharmaceutical Cost Transparency Act (the NYPCTA), continues this unfortunate trend, by requiring companies to disclose the R&D costs of newly approved drugs in an effort to educate the public—and to shame drug makers into lowering their prices. The NYPCTA, however, paints an overly simplistic picture of the prescription drug pricing formula, leaving out important variables including the cost of drugs that failed in testing and price controls on drugs in many foreign markets. Given these shortcomings, the bill finds itself at risk of failing the minimal scrutiny constitutional standard applied to government regulation of businesses. This risk would be eliminated with minor amendments and additions to the NYPCTA, which would bolster the legislation to where it would genuinely educate the public on the factors that converge in setting a drug's price.
PubDate: Thu, 12 Jan 2017 11:52:49 PST
- “Hello…it’s me. [Please don’t sue me!]” Examining the FCC’s
Overbroad Calling Regulations Under the TCPA
Authors: Marissa A. Potts
Abstract: Americans have received unwanted telemarketing calls for decades. In response to a rapid increase in pre-recorded calls made using autodialer devices, Congress enacted the Telephone Consumer Protection Act (TCPA) in 1992. The TCPA imposes restrictions on calls made to consumers’ residences and wireless phones using autodialer devices, even if they are not telemarketing calls. Congress appointed the Federal Communications Commission (FCC) to prescribe rules and regulations to enforce the TCPA. In 2015, the FCC released an order that defined autodialer more broadly under the statute. Consequently, devices that have the potential to become autodialers in the future, even if they are not presently able to perform autodialer functions, will constitute autodialers for purposes of the TCPA. This new scope of autodialers includes everyday technology, such as smartphones, that consumers and businesses use on a regular basis. As a result, the FCC has unreasonably broadened the scope of the TCPA to limit the use of everyday technology. This note examines the new autodialer definition and argues that it is problematic for several reasons. The new autodialer definition does not comport with a plain reading of the TCPA, Congressional intent, or recent federal case law. Furthermore, this note predicts that the broader autodialer definition will have two detrimental effects—it will shift TCPA enforcement efforts away from purposeful, predatory TCPA violators and will increase TCPA litigation against companies engaged in legitimate business or between individual consumers. This note also examines recent trends in TCPA class action suits, including financial incentives for plaintiff attorneys to pursue TCPA lawsuits. Ultimately, the FCC should reinterpret the statute so that autodialers only include devices with the present ability to perform autodialer functions and should further require service providers, such as AT&T and Verizon, to offer consumers a more widespread call blocking service to help protect them from predatory robocalls
PubDate: Thu, 12 Jan 2017 11:52:45 PST
- DUI Law in the Budding Marijuana Industry
Authors: Zack G. Goldberg
Abstract: The rapid legalization of marijuana across the United States has produced a number of novel legal issues. One of the most confounding issues is that presented by the marijuana-impaired driver. In jurisdictions that have legalized the use of marijuana, how high is too high to get behind the wheel? This note assesses the various marijuana DUI laws that states have implemented to combat marijuana-impaired driving. Many of these statutes have followed in the footsteps of the BAC-based standard used to combat drunk driving—using THC measurements to quantify a driver’s level of marijuana-based impairment. Unfortunately, unlike alcohol, the scientific properties of marijuana make it difficult to measure and to correlate with various levels of impairment. This is particularly true in chronic marijuana users, such as medical marijuana patients, who are inevitably exposed to increased liability as a result of such laws. This note proposes various statutory and policy changes, such as affirmative defenses and the use of drug recognition experts, to better adapt marijuana DUI laws to the reality of marijuana impairment on the road.
PubDate: Thu, 12 Jan 2017 11:52:42 PST
- Extending Comparative Fault to Apparent and Implied Consent Cases
Authors: Aaron D. Twerski et al.
Abstract: This article challenges the traditional view of consent as a binary issue. Because “lack of consent” is an element of an intentional tort, courts do not apply comparative responsibility principles and therefore must find that plaintiff has either consented to the invasion of her person or not. In cases where consent is predicated on apparent consent or implied consent, however, the all–or-nothing approach to consent fails to take into account that both plaintiff and defendant may have been responsible for a miscommunication as to consent. This essay focuses on well-known cases and situations where both parties likely contributed to a misunderstanding as to whether the plaintiff consented to the defendant’s conduct and suggests that, in such cases, comparative fault provides a modality for assessing damages. In many cases, the binary approach to consent is justified. When a court finds that both parties contributed to the misunderstanding, however, they should apply comparative fault to reflect that reality.
PubDate: Thu, 12 Jan 2017 11:52:39 PST
- The Core of an Unqualified Case for Judicial Review: A Reply to Jeremy
Waldron and Contemporary Critics
Authors: Alexander Kaufman et al.
PubDate: Thu, 12 Jan 2017 11:52:35 PST
- Governance by Proxy: Cyber Challenges to Civil Liberties
Authors: Niva Elkin-Koren et al.
PubDate: Thu, 12 Jan 2017 11:52:32 PST
- Attempt, Merger, and Transferred Intent
Authors: Nancy Ehrenreich
Abstract: Recent years have seen a dramatic expansion in the transferred-intent doctrine via rulings involving attempt liability. In its basic form, transferred intent allows an intentional actor with bad aim who kills an unintended victim (instead of the intended target) to be punished for murder. Today, some courts allow conviction in such situations not only of transferred intent murder as to the actual victim, but of attempted murder of the intended victim as well. Critics of this expansion (as well as other similar variations) have argued that it distorts the meaning of transferred intent and imposes liability disproportionate to culpability. Little attention has been paid, however, to another flaw in uses of attempt liability in the transferred intent context: the fact that such liability often violates the merger doctrine. Under the merger rule, an individual cannot be convicted of both committing a completed crime against an intended target and attempting to commit that same crime against that same person, where both charges stem from the same conduct by the actor. The attempt simply merges into the completed offense. This article considers whether, similarly, the merger rule prohibits double convictions in the transferred intent context—such as punishing an actor both for killing an unintended victim and for attempting to kill the original target. It concludes that several important policy justifications underlying the merger doctrine mediate against subjecting a defendant to the significant increase in punishment that results when an attempt is not merged into the completed (transferred intent) offense.
PubDate: Thu, 12 Jan 2017 11:52:28 PST
- Deported by Marriage: Americans Forced to Choose Between Love and Country
Authors: Beth Caldwell
Abstract: As the fiftieth anniversary of Loving v. Virginia approaches, de jure prohibitions against interracial marriages are history. However, marriages between people of different national origins continue to be undermined by the law. The Constitution does not protect the marital rights of citizens who marry noncitizens in the same way that it protects all other marriages. Courts have consistently held that a spouse’s deportation does not implicate the rights of American citizens, and the Constitution has long been held inapplicable in protecting the substantive due process rights of noncitizens facing deportation. Given the spike in deportations over the past decade, hundreds of thousands of American citizens—often Latina women—face a dilemma the Supreme Court has referred to as “intolerable” in other contexts: they must choose between the fundamental right to marriage and the right to live in the United States. Influenced by gendered and racial subordination, the law allows for the deportation of the spouses of American citizens with virtually no constitutional oversight. This article draws upon the experiences of women whose husbands have been deported to challenge the foundational assumptions underlying many of the cases that have held that spousal deportation does not implicate the rights of citizen spouses, arguing that the Constitution should protect the marriages of binational couples in the same way it protects all other marriages, and that strict scrutiny should apply to deportations of the husbands and wives of U.S. citizens.
PubDate: Thu, 12 Jan 2017 11:52:25 PST
- Perpetual Twilight: How the USDA's Change to the Sunset Process
Violates the Organic Foods Production Act of 1990
Authors: Valentina Lumaj
Abstract: In 1990, Congress enacted the Organic Foods Production Act of 1990 (OFPA) in response to consumer and industry demands for uniform standards in organic production. The drafters recognized that the basic tenet of the legislation was that organic foods would be produced without the use of synthetic materials, but they left room for minimal exceptions in the National List of Allowed and Prohibited Substances (the National List). The National List enumerates the exemptions for synthetic substances, as well as prohibitions of natural substances, such as arsenic, in organic production. In September 2013, the USDA amended the Sunset Process, which is one of the processes by which the National List is maintained. Prior to the 2013 amendment, an exemption for a synthetic substance was reviewed by the National Organic Standards Board (NOSB) following five years of its initial approval, and if a two-thirds majority of the NOSB did not vote affirmatively to reapprove the substance for another five years, it would expire and could no longer be used in organic production. The 2013 amendment reverses the Sunset Process and requires that the NOSB instead vote by a two-thirds majority for removal, but if such a vote fails to pass muster the substance is automatically renewed for another five years.This note proposes that the USDA restore the Sunset Process as it stood prior to the 2013 amendment in order to realign the process with the intent and plain letter of the OFPA. The drafters of the OFPA intended a limited National List to reflect consumers’ expectation that organic foods contain no synthetic ingredients. The amended Sunset Process will continue to expand the National List, as exemptions will automatically renew every five years without a two-thirds NOSB vote for removal. Further, the amended Sunset Process alters the substance of the NOSB’s vote and undermines its pivotal role in representing the interests of the organic community. This note further critiques the 2013 amendment to the Sunset Process and concludes that it has diluted organic standards and diminished the organic label’s integrity. As a result, the unprecedented growth that the organic industry has seen over the last few years is threatened because consumers’ willingness to pay premium prices for organic foods is largely a consequence of their belief that organic foods are produced without the use of synthetics.
PubDate: Tue, 23 Aug 2016 11:47:47 PDT
- Parody and the Fair Use Defense: The Best Way to Practice Safe Sex with
All Your Favorite Characters
Authors: Jessica N. Schneider
Abstract: The copyright fair use test balances the copyright holder’s right to exclude others from using its work against the secondary user’s First Amendment right, yet this test is often too unpredictable and favors misappropriation, even the most commercial kind. The test is weakest when used to determine the legality of sexual parodies. The sexual nature of the parody should receive statutory consideration in the balancing test because vulgar and lewd speech is often deemed “low value” speech, and therefore the secondary user’s First Amendment right is weaker compared to the copyright owner’s right to exclude. Courts already consider the sexual nature of the content in both trademark and First Amendment jurisprudence, which suggests incorporating this aspect is plausible, relevant, and important. The fair use test should further be expanded to include a consideration of the demographic of the copyright holder’s target audience to more accurately determine the likelihood of market harm that would result from the parody. This consideration also has the secondary effect of protecting children from exposure to lewd material. The current balancing test for determining whether a parody is fair use yields inconsistent results that inequitably favor the “parodists” and result in mass media companies reprinting exact images of protected characters and profiting significantly from the sale of those images. Expanding the factors considered in the test will more appropriately protect copyrighted works and prevent secondary harm to juvenile audience members.
PubDate: Tue, 23 Aug 2016 11:47:43 PDT
- Dissecting Hobby Lobby's Corporate Person: A Procedural Proposal for
Aligning Corporate Rights and Responsibilities
Authors: Andrew J. Fleming
Abstract: Over the years, the U.S. Supreme Court’s corporate personhood decisions have allowed for the corporation to become increasingly more “person-like” by recognizing corporate constitutional rights that were previously reserved for flesh-and-blood human beings. Yet in cases where the rights of corporations are evaluated, the Court’s analysis flows from an axiomatic conceptualization of the corporation as a static, theoretical being, as if plucked straight from a business organizations law school textbook. The result is a gulf between corporate rights as “persons” and corporate legal responsibilities. Nowhere is that gulf more evident than in the Court’s personal jurisdiction jurisprudence. In particular, this note addresses the fact that corporations are not amenable to suits brought via tag jurisdiction, because tag jurisdiction is premised on physical presence within a territory. A corporation, under the classic view, is only physically present in its state of incorporation, the state of its principal place of business, and wherever its contacts are so systematic and continuous that the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice. The Supreme Court has never addressed the issue of corporate tag jurisdiction, but several circuit courts have held that the doctrine does not apply to corporate entities.This note focuses on the implications of the Court’s decision in Hobby Lobby and asserts that the majority opinion in that case marked a fundamental deviation from the traditional notion of physical presence associated with corporate entities. In Hobby Lobby, the Supreme Court held that closely held corporations were persons for purposes of claiming a religious exemption from the Affordable Care Act’s birth control mandate. Importantly, though, the Court departed from its motif of assessing the corporate personhood right at issue as it applied to all corporations and instead arbitrarily extended the religious exemption only to closely held corporations, which the majority failed to define. Drawing on the majority’s opinion and other existing definitions of closely held, this note proposes that closely held should be defined as corporations at least 50% owned by a single shareholder, with no more than 100 total shareholders. Working with that definition in mind, this note then deconstructs the “new” corporate person spawned by the Hobby Lobby decision and argues that religious closely held corporations are so “person-like” that the divide between the theoretical corporation and its management no longer exists, and instead, closely held corporations now are more akin to other business entities like partnerships, which are subject to tag jurisdiction. Therefore, in an effort to better match corporate rights and responsibilities, this note argues that closely held corporations should be subject to tag jurisdiction.
PubDate: Tue, 23 Aug 2016 11:47:40 PDT
- Public Interest over Private Prejudice? The Public Interest Exception to
the Defense of Laches and the Fourth Circuit's Clean Slate
Authors: Christopher A. Mull
Abstract: The trademark cancellation petitions and subsequent appeals surrounding the Washington Redskins’ allegedly disparaging trademarks lay useful groundwork in determining the applicability of the equitable defense of laches in the face of a purported greater public interest. The Lanham Act gives individuals the power to petition to cancel federally registered marks that may be disparaging to a group of individuals, while also permitting trademark holders to assert the equitable defense of laches in the event of unreasonable delay and consequential prejudice. In Pro-Football, Inc. v. Harjo, the District Court for the District of Columbia and the D.C. Circuit held that the defense of laches is applicable to a claim that a trademark is disparaging, finding that applying a public interest exception is untenable. However, in what is essentially a relitigation of Pro-Football, Inc. v. Harjo, the Eastern District of Virginia disallowed the application of the defense of laches in cancellation petitions based on disparagement claims, citing a greater public interest in Pro-Football, Inc. v. Blackhorse. While circuits often split, this inconsistency is avoidable as the public interest exception to the defense of laches is contrary to the essence of trademark law and attempts to apply a sweeping rationalization to a narrow subset of the population. The Fourth Circuit’s impending decision on appeal from the Eastern District of Virginia will have extensive ramifications for the private interests of trademark holders.
PubDate: Tue, 23 Aug 2016 11:47:36 PDT
- "Outsmarting" Death by Putting Capital Punishment on Life Support: The
Need for Uniform State Evaulations of the Intellectually Disabled in the
Wake of Hall v. Florida
Authors: Taylor B. Dougherty
Abstract: While the Supreme Court has yet to hold capital punishment per se unconstitutional, the Court has exempted certain groups of individuals from being eligible for capital punishment, due to concerns about the protection against cruel and unusual punishment provided for in the 8th Amendment. One such group is individuals who are intellectually disabled (the term which replaced the long-used mental retardation). But in exempting such individuals from capital punishment in its decision in Atkins v. Virginia, the Court left it to the states to establish metrics for determining which defendants are in fact intellectually disabled so as to warrant exemption. This resulted in significantly diverging standards between states in adopted evaluative mechanisms. Specifically, many states relied exclusively on IQ testing without taking into account the inherent error present in such testing. These states also refused to consider additional evidence of a defendant’s intellectual ability if a defendant fell above a bright-line score on IQ testing. The Supreme Court reaffirmed the exclusion of intellectually disabled defendants from capital punishment in Hall v. Florida but again declined to establish metrics for states to adopt in evaluating potentially intellectually disabled capital defendants.This note proposes the adoption of a uniform, multipronged system by which to evaluate capital defendants who allege their intellectual disability exempts them from capital punishment. This system, acting in accordance with psychological standards for evaluating intellectual disability, would look not only at IQ testing, but would also consider evidence of factors within the realms of practical and social intelligence, to conduct a holistic evaluation of a defendant’s intellectual ability. By adopting such a standard, this would ensure that the Court’s intention in both Atkins and Hall—to prevent the cruel and unusual execution of the intellectually disabled—is actually achieved in all jurisdictions.
PubDate: Tue, 23 Aug 2016 11:47:33 PDT
- The New Governance and the Challenge of Litigation Bylaws
Authors: Jill E. Fisch
Abstract: Corporate governance mechanisms designed to ensure that managers act in shareholders’ interest have evolved dramatically over the past 40 years. “Old governance” mechanisms such as independent directors and performance-based executive compensation have been supplemented by innovations that give shareholders greater input into both the selection of directors and ongoing operational decisions. Issuer boards have responded with tools to limit the exercise of shareholder power both procedurally and substantively. This article terms the adoption and use of these tools, which generally take the form of structural provisions in the corporate charter or bylaws, the “new governance.”Delaware law has largely taken a hands-off approach to the new governance. The courts have policed shareholder innovations that interfere unduly with board authority and have invalidated board innovations that are extreme or adopted for an inequitable purpose. For the most part, however, the law has deferred to private ordering—leaving individual firms to structure their governance mechanisms as they see fit, with market discipline forming the primary constraint.In 2015, however, the Delaware legislature responded to the growth of bylaws designed to control the extent of shareholder litigation with an unusual step; it amended the statute to impose mandatory limits on litigation bylaw and charter provisions that went beyond the constraints imposed by the Delaware courts and that could not be altered by individual firms. It is difficult to reconcile the legislature’s action in light of Delaware’s traditional deference to the courts and the market.This article argues that the legislature’s response to litigation bylaws is best understood as a mandate that corporations who seek to avail themselves of Delaware law by incorporating within the state submit to the full package of Delaware corporate law—a package that includes both statutory provisions and oversight by the Delaware courts. In that light, the legislation should not be understood as signaling an intention to subject the new governance to greater oversight.
PubDate: Tue, 23 Aug 2016 11:47:29 PDT
- Psychological Harm and Constitutional Standing
Authors: Rachel Bayefsky
Abstract: This article offers the first sustained treatment of psychological harm as cognizable injury-in-fact under constitutional standing analysis. The Supreme Court has held that Article III of the Constitution requires plaintiffs to show “injury-in-fact” in order to enter federal court. This article takes up the critical question of whether psychological or emotional injury can and should count as injury-in-fact. The Supreme Court has never directly addressed this question, and lower federal courts have offered divergent perspectives. Scholarship on related topics thus far has focused on specific areas of law and a limited set of cases, without connecting the dots between doctrinal settings or offering a consistent proposal about the treatment of psychological harm in the constitutional standing regime.This article fills these gaps. It argues that courts should explicitly recognize that psychological harm can count as injury-in-fact while adopting a clear framework to distinguish cognizable from non-cognizable psychological claims. The article proposes and applies its own framework—one that innovates while remaining rooted in basic principles of standing doctrine. In doing so, the article and the accompanying appendix offer a detailed analysis of the current treatment of psychological harm in constitutional standing doctrine across geographical and temporal boundaries. The article’s approach enables federal courts to acknowledge more completely citizens’ genuine experiences of harm without leaving behind the limitations on the federal courts’ jurisdiction that constitutional standing doctrine has come to embody.
PubDate: Tue, 23 Aug 2016 11:47:26 PDT
- The Uneasy Case for Food Safety Liability Insurance
Authors: John Aloysius Cogan Jr.
Abstract: Foodborne illnesses sicken millions and kill thousands of Americans every year, leading many to conclude that our dysfunctional government food safety system, which still relies heavily on physical inspections of food and facilities, is incapable of protecting us. As a result, many now look to the private market for solutions to our food safety crisis. One private market approach, food safety liability insurance, is gaining popularity. This article examines the benefits and drawbacks to food safety liability insurance and raises doubts about its ability to improve food safety. The market for safe food is plagued by overwhelming information problems that (1) make foodborne illnesses extremely difficult to connect to their pathogenic sources, (2) create moral hazard and adverse selection problems that drive food suppliers to shirk on food safety, and (3) suppress tort claims by victims of foodborne illnesses. These problems limit the effectiveness of food safety liability insurance. Yet while the food safety liability insurance appears to provide few of the regulatory benefits of other type of liability insurance, food safety liability insurance also carries risks: a potential to increase moral hazard, send false signals to insureds regarding their risk of transmitting a foodborne illness, and diminish demand for more effective means to control foodborne illnesses.
PubDate: Tue, 23 Aug 2016 11:47:23 PDT
- Tainted: Food, Identity, and the Search for Dignitary Redress
Authors: Melissa Mortazavi
Abstract: The law recognizes a right to legal redress for exposure to food that is tainted in the sense of being toxic or poisonous, but what about exposure to food products individuals find socially, morally, or religiously repugnant? Jews eating “kosher” hot dogs containing standard non-kosher meats. Vegetarians fed beef. Muslims ingesting vitamins containing pork. Aren’t these food products also “tainted”? Despite the fact that the American legal system has long recognized the need to protect individual dignitary rights, the law provides little meaningful redress in these situations or other instances of offensive food taint. So why has food autonomy, an intuitive manifestation of personal dignity and central expression of individual identity, fallen outside of what the law recognizes as harm? Ultimately, is this a situation where facially neutral law is tainted by embedded food assumptions to the disadvantage minority groups, minority political views, and minority faiths?This article defines the problem of failing to recognize such offensive food taint, outlines the current state of the law regarding such taint, and then lays out some potential solutions for providing redress moving forward. Part I begins by discussing why food is different from other products and how food is more than nutrition and is also a manifestation of identity—religion providing the most stark and obvious example. Part II then goes on to discuss the current state of the law and systematically exposes how such harms are not finding redress under existing law. Finally, the article closes with a discussion of how the law can better address these issues and concludes that common law battery may provide an immediate answer. These claims are ultimately founded on valuing the right of a person to his or her own physical autonomy. This article argues that food law must resist the temptation to taint that value, even through oversight, with a blind commitment to food safety and majority food culture.
PubDate: Tue, 23 Aug 2016 11:47:19 PDT
- Race, Restructurings, and Equal Protection Doctrine Through the Lens of
Schuette v. BAMN
Authors: Steve Sanders
Abstract: In 2012, the U.S. Court of Appeals for the Sixth Circuit ruled that Michigan voters had violated principles of the fair lawmaking process when they amended their state constitution to prohibit race-conscious affirmative action in public university admissions, reasoning that the amendment, known as “Proposal 2,” constituted a political restructuring that had violated the Equal Protection Clause by disadvantaging African Americans from being able to equally access political change. However, the Sixth Circuit was careful to avoid saying that Proposal 2 created a racial classification or was motivated by a purpose of discriminating on the basis of race. Instead, consistent with the view that the Hunter/Seattle doctrine allowed for the finding of a constitutional violation based only on the detrimental political process effects of a restructuring on a minority group, the court eschewed any need to apply what it called “traditional” equal protection analysis, which requires an intentional decision to create a racial classification or discriminate invidiously. In a deeply fractured 2014 decision with no majority opinion, the Supreme Court reversed the Sixth Circuit in Schuette v. Coalition to Defend Affirmative Action. In the plurality opinion, Proposal 2 simply reflected disagreement on the public policy question of affirmative action that the citizens of Michigan were entitled to settle as they saw fit. While the Schuette opinions settled the constitutionality of Proposal 2, they created confusion and uncertainty going forward about how we should think about political restructurings as a matter of constitutional equal protection.This article provides an in-depth exposition of the restructuring cases that came before Schuette, an analysis of the Schuette decision’s place within the equal protection doctrine, and some observations about judicial review of political restructurings in the future. It advances three arguments. First, this article argues that the best-known political restructuring cases, Hunter and Seattle, did not create an exception to the principle that a violation of the Equal Protection Clause requires intentional discrimination. Second, Schuette is, above all, a decision reflecting the current state of the Supreme Court’s racial equal protection jurisprudence, not a decision about political restructurings as such. Third, Schuette does not alter the lesson from restructuring precedents that courts can and should give more careful scrutiny to political restructurings than is provided by the baseline, highly deferential form of rational basis review that is applied to ordinary legislative enactments. Finally, this article explains why careful judicial scrutiny of restructurings for invidious purposes remains both permissible and necessary, especially given the inherent flaws of direct democracy.
PubDate: Tue, 23 Aug 2016 11:47:16 PDT