Volume 56, Issue 4
Shielding Science: The Scientific Integrity Act and Enforcing Firewalls Between Science and Politics
Emily J. Berman
During the Trump administration, civil servants, watchdogs, and elected officials repeatedly accused political appointees of censoring, altering, or otherwise interfering with the work of scientists and civil servants at federal scientific agencies. In deliberate contrast to his predecessor, from his first day in office, President Biden has stated his commitment to restoring scientific integrity. But is executive action enough? Should Congress complement these executive actions with legislation? If so, how may Congress best provide firewalls between staff at scientific agencies and those who would improperly hinder their work?
This Note analyzes the historical context of, limits to, and potential for legislative protections for civil servants at scientific agencies, with particular focus on the recent Scientific Integrity Act. This Act, which has been introduced in each of the three prior Congresses, would insulate staff at scientific agencies from certain kinds of improper political interference. To be more effective, however, a future version of the Act should be revised to include stronger enforcement provisions.
To explore the need for and promise of the Scientific Integrity Act, this Note first places the Act in its historical context. This Note then explores limits to other existing
protections. Finally, this Note examines the Act itself, arguing that the Act includes key protective provisions but that it will fail to achieve its full purpose unless it adds stronger enforcement mechanisms. These proposed tools would empower relevant officials to better investigate accusations against high-level political officials and create possible consequences for those who violate the Act.
Actualizing Justice: Private Prosecution Regimes for Modern Social Movements
Caroline L. Ferguson
The modern state enjoys a near monopoly over the prosecutorial system. Public officials, including local district attorneys, state attorneys general, and career prosecutors, enjoy enormous discretionary powers to decide who to charge, to determine what charges to bring, to make particular bail recommendations, to set the terms of plea bargains, and more. Rather than examining the broad discretion of the public prosecutor, this Note instead examines lesser-known private prosecution systems, where individuals, groups, and corporations bring criminal accusations.
This Note surveys the practice of private prosecution outside the United States. It then turns to look within the United States at the differing legal regimes that regulate private prosecution in the various jurisdictions that permit the practice. Ultimately, this Note asks what role private prosecution may have within modern social movements.
Just Cause We Can: Ending At-Will Employment and Avoiding Preemption
Nathaniel Kazlow
Unlike most European countries, the United States does not generally provide “just-cause” protections for its employees, meaning most workers are employed “at will” and may be terminated for any reason whatsoever. Although federal and state laws shield many workers from discriminatory and retaliatory firings, these protections are not enough. States and municipalities can and should legislate additional safeguards, especially in low-wage industries most affected by employee turnover.
This Note argues that federal labor law does not preempt state laws and city ordinances that provide just-cause protections to workers. The Note begins by reviewing at-will employment in the United States and Machinists preemption, a doctrine that precludes state and local regulation of those aspects of labor-management relations that Congress intended to be regulated by market forces. After analyzing the circuits’ differing applications of the Machinists preemption doctrine, this Note argues that just-cause laws are best understood as setting permissible, minimum labor standards rather than as impermissibly interfering in the collective-bargaining process. Under such an interpretation, it follows then, that state and local just-cause laws should not be preempted by the federal National Labor Relations Act. The Note concludes by providing recommendations to states and municipalities on how best to structure their just-cause legislation, leveraging lessons learned from recent and decades-old statutes and case law.
Don’t Break the Bank, Build a New One: How Investing in Public Banks Can Solve Pensions’ ESG Problem
Geeta Minocha
Pension funds are significant institutional investors with massive capital. Attractive, prosocial investment opportunities abound. Nevertheless, several roadblocks limit American pension managers from engaging in ESG investing, including ERISA, fiduciary rules, anti-ESG state laws, and institutional inertia. This impasse creates an opportunity for public intervention because the private sector may be failing to meaningfully adjust to meet societal goals. This Note argues that public banking may be an appropriate tool to distribute some pension capital to ESG goals, effectively enabling pensions to outsource their present ESG burden. Though currently a rarity in the United States, public banks can serve as sound investments for pensions while in turn using this invested money for prosocial initiatives.
Volume 56, Issue 3
Leashed: How Veterinarian Noncompetes Accelerated Industry Consolidation
Logan Wilke
The veterinary services industry, once characterized by locally-owned general care providers, has been rapidly consolidating into one dominated by multinational conglomerates. These corporate consolidators leverage their size and capital both to fund acquisitions and to attract debt-laden veterinary school graduates with above-market starting salaries. Whether they join a corporate practice through entry-level hiring or an acquisition, veterinarians typically become bound by employment contracts containing restrictive noncompete provisions. Regardless of their specific terms, legal enforceability, or actual enforcement, these noncompetes appear to keep young associates from leaving to competitors until later than they otherwise would have. These provisions serve to withhold scarce labor from competitors, which has increased pressure on independent veterinarians to sell their practices and accelerated consolidation.
In detailing the effects of veterinary consolidators’ use of noncompetes, this Note lends support to a broad federal rule prohibiting these provisions without an exception based on income or job function. A rule eliminating all veterinarian noncompetes except those covering practice owners or those used in the sale of a practice can best foster more equitable and sustainably competitive growth in the veterinary services industry.
Short of a Full House: The Increasing Length of Vacancies in the U.S. House of Representatives, 1997–2021
Tyler Ritchie
Members of the U.S. House of Representatives provide the most immediate and localized connection between their constituents and the federal government. When those positions are left vacant for extended periods of time, Americans are deprived of an agent to advocate for their interests at the national level. Article I of the Constitution gives state executives authority to set dates for special elections to Congress. In some instances, governors have taken advantage of this nearly unlimited power to deny these seats to their partisan rivals. This Note presents the data from every open seat in the House over twenty-five years and shows that the average vacancy has become substantially longer during that period—almost twice as long on average. This Note then uses the seat in the 20th District of Florida, which was left open for 287 days in 2021 and 2022, as a case study to show the negative impacts of such vacancies. To avoid these increasingly common outcomes, this Note urges the adoption of an upper limit on the length of a vacancy in the House of Representatives. Article I also provides the U.S. Congress with authority to overrule the states and pass laws to regulate the times of congressional elections. Congress should use this power to pass a new law regulating vacancies. Such action is necessary to address potentially severe harms to representative democracy.
If at First You Don’t Succeed, Try, Try Again: Why College Athletes Should Keep Fighting for “Employee” Status
Jennifer A. Shults
Beginning in the 1980s, innovations in television turned college sports from a modest, regional industry into a sprawling, billion-dollar enterprise. The various stakeholders in college sports did not benefit equally from these advancements, however. While those in charge of college sports rode the train of technological progress to extreme profits, the athletes under their care got left behind. Today, the college sports world is once again undergoing a period of transition and transformation—except this time, college athletes are the ones leading college sports into a new era.
In recent years, athlete activists and their allies have secured a series of major legal victories. Key victories have included the removal of the ban on college athletes profiting from their fame and the Supreme Court’s watershed decision in the antitrust case NCAA v. Alston. This Note focuses on college athletes’ recent efforts to improve their financial circumstances and to dismantle a system that deprives them of the basic right to fair compensation. This Note argues that Division I athletes’ best shot at getting fair compensation is to continue fighting for employee rights—specifically, the right to collectively bargain and the right to a minimum wage.
Volume 56, Issue 2
Dissociated Decision-Making: Contract Competency Evaluations of Individuals with Dissociative Identity Disorder
Andrea Ashburn
Dissociative Identity Disorder (DID) is a mental disorder in which the impacted individual develops multiple independent personality states. The existence of DID calls into question countless existing legal concepts, but the vast majority of existing legal scholarship addressing DID primarily discusses criminal issues. Just as it is to the general population, the ability to enter into enforceable contracts is important to the DID community. Without a legal framework that adequately addresses the unique needs of those with DID, these individuals risk losing their right to contract entirely.
This Note seeks to further expand the discussion of DID to non-criminal issues by (1) presenting background information on DID as a disorder, (2) examining New York mental health contract law doctrine and its standards governing the competency to enter into a contract, and (3) suggesting that an alternative standard apply to individuals with DID.
Putting the Blindfolds on Driverless Panopticons
Alastair Pearson
Autonomous vehicle (AV) deployment will radically reshape the relationship between Americans and their cars. A society which has long prized private car ownership will see riders transition to dramatically cheaper robotaxi services. Cities will regulate AVs in real time, using a sophisticated new regulatory technology called Mobility Data Specification (MDS). The widespread use of AVs owned by impersonal operators and regulated by municipal governments will bring to the fore privacy questions which were more easily ignored when cities were using MDS to regulate more niche modes of transportation like e-scooters. Mass adoption of AVs will elevate the stakes of Fourth Amendment concerns about the collection and analysis of anonymous geolocation data.
This Note aims to answer the important question of whether commercially deployed AVs can constitutionally be subjected to regulatory programs that mirror MDS as currently applied to the regulation of e-scooters. Robust scholarship is emerging about the scope of the concept of inescapability, first introduced in Carpenter v. United States, the Supreme Court’s most meaningful effort to erect guardrails around location data. Scholars are also exploring how the third-party doctrine undermines Fourth Amendment values, and the breadth of modern administrative search doctrine. This Note builds on these critiques and proposals to argue that the Fourth Amendment will impose limits on cities seeking to track real-time location data from AVs. AVs are likely to become inescapable, and the data collected from the public will be uniquely sensitive. If cities want the power to demand real-time data from AVs, they will need to rigorously justify their collection of such data and take concrete steps to anonymize it.
Prose to Policy: How Wendell Berry’s Distinct Strain of Agrarianism Can Influence Farm Policy
Jack Sherrick
Industrial agricultural practices have greatly increased food yields but cause significant harm to the environment and rural communities. Over half of the topsoil of the United States has been washed away in the past seventy years and an even higher percentage of the country’s farmers have voluntarily left or been driven out of the profession. Wendell Berry, a celebrated author and farmer, is a staunch critic of industrial agriculture. His writings primarily concern healthy rural communities, sustainable agriculture, and the relationship between the two. Academics and policymakers alike have appreciated Berry’s writings for their nostalgia and aesthetics, yet few readers have conducted legal treatments of or crafted policy in accordance with his work. This Note explains why there has been so little analysis and fills that gap, using Berry’s writings as the basis of a framework for farm reform.
This Note analyzes the values present in Berry’s work and transmutes them into a cognizable policy framework. Part I examines the harms caused by industrial agriculture and shows how the current legal-regulatory framework preserves and promotes an unworkable status quo. Part II introduces Berry and addresses issues in his thought that impede robust legal and policy analysis. Part III uses Berry’s writings, supplemented by legal and political theories, to construct a policy framework designed to foster and utilize agrarian values. Part IV applies the framework to the Farm Bill and suggests several reforms for the bill’s 2023 reauthorization.
Volume 56, Issue 1
Misappropriation vs. Alteration: Post-Kelly Efforts to Criminalize Fraud Targeting Confidential Government Information
Luke Urbanczyk
The federal wire and mail fraud statutes criminalize “any scheme or artifice to defraud” that uses interstate wires or mailings to obtain “money or property by means of false or fraudulent pretenses, representations, or promises.” But what exactly counts as property, triggering the statutes’ criminal penalties? In Carpenter v. United States, the Supreme Court held that confidential business information is property for purposes of the fraud statutes. In Cleveland v. United States and Kelly v. United States, the Court established that a scheme to alter a regulatory choice—which implicates the government’s role as a sovereign—does not deprive the government of property. The Court has left unclear, however, whether confidential government information can satisfy the fraud statutes’ property requirement.
After highlighting the uncertain status of the law governing schemes that misappropriate confidential government information, this Note argues that as a matter of property theory, the government has a property interest in its confidential information because it has the right to exclude others from this information and that Kelly represents a mere application of Cleveland’s narrow exception to this rule. Finally, this Note proposes a test to distinguish schemes that target government property from those that implicate the government’s sovereign capacity: when fraudulent schemes seek to misappropriate confidential government information they target property, but when they seek to alter a governmental decision, they do not.
Beyond the Point of Exhaustion: Reforming the Exhaustion Requirement to Protect Access to IDEA Rights in Juvenile Facilities
Abbe Petuchowski
Congress enacted the Individuals with Disabilities Education Act (IDEA), in conjunction with other federal and state laws, to recognize a substantive right to “a free appropriate public education” for youth with disabilities and to establish a process to make this right accessible. Although the IDEA guarantees youth in juvenile facilities the same legal rights to special education services as students attending traditional public schools, correctional and education agencies across the country struggle to provide students in these facilities with special education services that meet these legal mandates. When violations occur, the IDEA imposes a threshold requirement that families exhaust administrative remedies before bringing a claim in state or federal court. Courts have interpreted this requirement, and especially its exceptions for systemic allegations of IDEA violations, in different and unpredictable ways.
This Note analyzes the IDEA’s application of the exhaustion requirement in the context of class action claims against juvenile facilities in federal courts. Part I outlines the substantive rights and procedural protections under the IDEA. Part II examines how structural features of juvenile facilities impede access to IDEA rights. Part III analyzes how the exhaustion requirement and its exceptions interact with the juvenile justice context to further deny access to IDEA rights. To address these concerns, Part IV proposes a range of reforms to the exhaustion requirement for allegations of systemic IDEA violations in juvenile facilities.
Blacklisting Allowed? Whether the False Claims Act Protects Former Employees from Retaliation
Hunter Baehren
Employers commonly blacklist whistleblowers. Despite its frequency, blacklisting remains unaddressed in many federal whistleblower statutes. These statutes typically contain antiretaliation provisions protecting “employees,” but since victims of blacklisting are former employees, protection under federal law is uncertain. In Robinson v. Shell Oil Co., the Supreme Court interpreted the term “employee” in the antiretaliation provision of Title VII of the Civil Rights Act to include former employees. Courts disagree, however, on Robinson’s relevance in interpreting the term “employee” in the antiretaliation provisions of other federal whistleblower statutes. A circuit split has emerged exemplifying this tension: the Sixth Circuit recently found that the term “employee” in the False Claims Act’s antiretaliation provision includes former employees. The Tenth Circuit previously ruled otherwise. This Note offers the following contributions: (1) this circuit split reflects a broader disagreement on the role of Robinson in interpreting antiretaliation provisions, and (2) the in pari materia rule can resolve the split, as well as provide courts a clear path to applying Robinson to antiretaliation provisions in other federal statutes.
Re-Examining the “McDonnell Problem”: Federal Prosecutors’ Ample Room to Prosecute State and Local Government Corruption
Ourania S. Yancopoulos
Historically, states have relied on the federal government to prosecute corruption involving their public officials and employees. In McDonnell v. United States, however, the Supreme Court purported to limit the definition of “official act” as used in the federal bribery, honest services fraud, and Hobbs Act extortion statutes—three of the Government’s most potent tools against public corruption. Many observers concluded that the ruling would obstruct or all but end the federal prosecution of government corruption at the state and local levels. To test this claim, this Note presents and analyzes a novel dataset of hundreds of prosecutions in five federal districts in the six years before and after McDonnell. The data show that federal prosecutors in these districts have neither stopped charging nor convicting state and local government corruption. Together with an assessment of post-McDonnell case law, this Note concludes that claims of the so-called “McDonnell Problem” are overstated.
Supplementals: Underlying Data and Key and Raw Data.