Proposition 22: What Does Your Uber Driver Deserve?

(Source) On November 3, 2020, in the throes of one of the most contentious presidential elections in history, all eyes at Uber and Lyft were on California. The rise of the gig economy—a labor market that relies on independent contractors and freelance workers outside of traditional labor regulations—is a major subject of discussion among legislators across the nation. California’s efforts to reform and regulate the gig economy hinged on the passage or failure of Proposition 22 (“Prop 22”), a ballot initiative that defines app-based transportation and delivery drivers as independent contractors with their own personalized labor and wage policies. The gig economy titans spent more than $200 million on their campaign in support of the measure, the most expensive in the state’s history. This past November, the titans rejoiced: Prop 22 had passed with 58% of the vote. But what does Prop 22 mean for California’s app-based drivers, and what are its consequences for gig economy workers nationwide? Gig economy giants, such as Uber and Lyft, assert that their app-based drivers are independent contractors, not employees. As independent contractors, drivers are exempted from major traditional protections under the National Labor Relations Act (“NLRA”) and other social protections like unemployment, workers [read more]

No More Zoom Law School?: The Constitutionality of Mandatory Vaccine Laws

(Source) “We’re very close to [the COVID-19] vaccine,” former President Trump stated in a press brief on September 16, 2020, suggesting that a vaccine could be ready by election day. Then-President-elect Biden responded that he did not trust the President to determine when a vaccine would be ready for the public. On November 9, 2020, Pfizer, as part of Operation Warp Speed, announced early results from its COVID-19 vaccine trial that suggest that the their vaccine was more than 90 percent effective. Since the election, President Biden has been more aggressive in ensuring that more vaccines are available by pledging to purchase 200 million addition vaccine doses. Assuming that the vaccine can be delivered safely and effectively, can the state and federal governments require such vaccine? State Government The Fourteenth Amendment prohibits any state from depriving “any person of life, liberty, or property without due process of law.” However, the liberty protected by the Constitution is not absolute. The Supreme Court has recognized that a state can exercise its police power by enacting reasonable regulations to protect public health and safety. The Supreme Court first addressed the constitutionality of mandatory vaccine laws in 1905. In Jacobson v. Massachusetts, the Court [read more]

If the Personal is Political, Then So is Food

(Source) Introduction Earlier this year, Mike Jozwik, the owner of Mushroom Mike LLC, discovered a method to consistently cultivate a corn fungus called Ustilago maydis after five years of experimentation. “Mushroom Mike” sees himself as a fungus expert, and is the mainstay edible mushroom supplier to most high-end restaurants from Milwaukee to Chicago to Madison. He’s in the process of creating a new business, which he is calling WiscoHuit LLC, specifically to sell U. maydis to restaurants and individuals. But Jozwik is far from the first person to discover U. maydis cultivation on this continent. The Indigenous peoples of central Mexico have been cultivating and consuming U. maydis since, food historians theorize, before Europeans ever arrived on the American continent. They call it “huitlacoche,” and it’s seen as a popular delicacy in Mexico, with over 400 to 500 tons of it sold in Mexico City annually. However, in the U.S., it’s called “corn smut” and seen as a destructive blight on corn crops, akin to a mold, that renders the underlying corn unsellable. As a result, it is relegated to harvests of fringe, seemingly “underground” farmers and restauranteurs. Because, as Jozwik points out, most genetically modified strains of corn have [read more]

Healthcare Price Transparency in a Privately Insured United States: Is Patient Ignorance Bliss?

(Source) It is no secret that the United States is the only industrialized nation without a single-payer universal healthcare program. Among the many issues created by the high cost of healthcare, both parties agree that unexpected, and often extremely expensive, medical bills present a serious threat to financial security in a nation where around two-thirds of individuals declare bankruptcy due to an inability to afford medical care. Despite both parties agreeing that surprise medical bills are a pressing issue, there is little agreement concerning what an appropriate solution might look like. On June 24, 2019, the Trump administration issued an executive order requiring hospitals to make negotiated pricing information accessible to the public. In November 2019, the Department of Health and Human Services, in complying with the order, created a “final rule” requiring all hospitals in the nation to publish the prices of certain procedures on their websites. The American Hospital Administration (“AHA”) and several other hospital networks subsequently filed a lawsuit challenging the administration’s authority to impose such a requirement. The AHA asserted that the rules imposed by this executive order would require more administrative positions to organize and deliver the requested pricing data, an increased cost that ultimately [read more]

New Jersey’s Half-Baked Ballot Initiative Prevents Meaningful Marijuana Reform

(Source) On Election Day, November 3, 2020, voters in four states, New Jersey, Arizona, Montana, and South Dakota approved the legalization of recreational marijuana in their states. These referendums, known as ballot initiatives, allow voters to participate in the state’s policymaking process by inviting them to vote on a proposed law. Prior to the 2020 election, nine states and D.C. legalized recreational marijuana through this method. Some ballot questions contained very general language concerning taxation and regulation. Now, eight years after the first successful legalization efforts in Washington and Colorado, the political conversation has evolved beyond rudimentary concerns.  This past year, criminal justice was on the ballot nationwide, allowing voters to impact state and local policies.  Now, there is a broader dialogue about legalizing recreational marijuana as a means of social and criminal justice reform. Many advocates of marijuana reform hope to wield this democratic tool to ensure that it would protect those who have been or would be harmed by marijuana’s criminalization. In light of the many historic moments of 2020 that have shed light on racial disparities and injustice in the United States, it is appropriate to address these key concerns in the ballot initiatives. In Arizona, the approved ballot measure included [read more]

Whose Right Is It Anyway?: The Messy Intersection of Graffiti, Street Art, and Copyright Law

(Source) Unlike the drab billboards and miles of gray concrete known to punctuate urban landscapes, the splashes of color typical of murals and street art demand to be seen. Street art’s roots, however, are found in graffiti, a phenomenon where various structures are “tagged” with words, which has been viewed as a public nuisance and plays a symbolic role in the controversial broken windows theory of policing neighborhood blight and crime. Graffiti artists have gradually garnered a countercultural reputation for disrespecting private property rights since they see city structures as blank canvases. Los Angeles, for example, spends $7.5 million a year to eliminate graffiti, removing over thirty million square feet of it from over 600,000 spots in 2015. Authorship is typically accompanied by legal rights, but do ownership interests even exist for graffiti artists and can they enforce them?  Do they even want to? Cities generally criminalize graffiti as a form of vandalism, but whether an artist’s right to free expression can overcome this is less clear. Cities generally criminalize graffiti with various approaches: Los Angeles considers graffiti to be a nuisance, requiring owners to keep buildings free of graffiti while artists may face fines and imprisonment under the California [read more]

Privilege, Progress, and Paid Family Leave

(Source) The United States has an embarrassing—and for many families, financially, physically, and emotionally devastating—paid family leave problem. According to the Organization for Economic Cooperation and Development, the United States ranks last in government-mandated paid leave for new parents. Among forty-one nations, the U.S. fails to mandate paid leave for new parents. Individual states have failed to pick up the slack. Currently, California, New Jersey, New York, Massachusetts, Rhode Island, Washington, and Washington, D.C. are the only states which provide paid family leave to eligible workers. Washington and Washington D.C.’s programs began just last year. Two more states—Connecticut, and Oregon—have programs slated to begin in 2022 and 2023, respectively. Colorado voted this past November on Proposition 118 to determine whether the state would implement its own paid family and medical leave program. Even though Colorado’s Proposition 118 passed, only nine states (plus the District of Columbia) have made meaningful steps toward a paid family leave mandate. The need for government-mandated leave becomes evident with a quick look at private sector leave statistics. In 2019, 18% of private sector employees had access to paid family leave through their employer and 42% of private sector employees had access to fully or partly [read more]

Feeling Crunched: Labor Conditions in the Video Game Industry

(Source) As we react to another spike in the coronavirus pandemic, many people are wondering how our work lives will change in the distant future of a post-COVID-19 world. One hope is that employers will be more understanding of a work-life balance and reevaluate the eight-hour workday. However, we know that burnout is a real threat that not only impacts productivity levels, but also can lead to a decline in physical and mental health. One industry that is thriving during the pandemic has been grappling with a work culture of burnout and overworked employees for a while now: the video game industry. Americans spent $10.86 billion on video gaming in the first quarter of 2020, the highest total in U.S. history. While people have been using video games to socialize and to experience nature in health-safe ways, the video game industry has been struggling with many of the same logistical hurdles in production as other industries, leading to conditions that feel familiar to many a video game developer: crunch. Crunch, also called “crunch time” or “crunch mode,” was first coined to describe intense periods where software programmers would work extra hours for extended periods of time to meet deadlines or [read more]

Exporting Miranda: How Fifth Amendment Protections Fall Flat in Overseas Interrogations

(Source) In the past twenty years, American law enforcement and the Federal Bureau of Investigation have increased their presence abroad. This increased presence is due in part to terrorist attacks against American targets and narcotics trafficking that affects U.S. citizens. Law enforcement’s role overseas is to investigate violations of American criminal laws committed by non-U.S. citizens. An integral component of the investigation process includes interrogating suspects. In the United States, any interrogated suspect is constitutionally protected by the Fifth Amendment right against self-incrimination. However, does this same right apply to non-citizens abroad? Per circuit courts’ understanding, the Fifth Amendment still applies in offshore interrogations. What is less clear is how this right must be given effect when interrogating non-citizens. Miranda v. Arizona and its Framework Domestically, the Fifth Amendment right against self-incrimination protects suspects during pretrial investigations. In the landmark case Miranda v. Arizona, the Supreme Court held that prosecutors may not use statements, whether exculpatory or inculpatory, stemming from the custodial interrogation of a detainee, unless the prosecution demonstrates the use of procedural safeguards. These safeguards ensure the privilege against self-incrimination. Miranda, therefore, mandates that before engaging a suspect in custodial interrogation, law enforcement officials must inform the suspect [read more]

Kamala Harris Should Let John Roberts Off The Hook

(Sources) The Constitution provides that when the President of the United States is tried in the Senate, the Chief Justice of the Supreme Court, rather than the Vice President, presides over the President’s trial. This time last year, the Chief Justice of the Supreme Court, John Roberts, fulfilled his constitutional duty by presiding over Donald Trump’s first impeachment trial. The otherwise reserved Roberts made his uneventful political debut in the Senate, assuming a role he likely despised given the extent to which he has avoided entangling himself in the partisanship which has dominated his time on the Court. This time, however, Mr. Roberts may be off the hook. While some have already assumed that John Roberts will preside over Trump’s second trial, this conclusion is doubtful, and Mitch McConnell’s most recent memo on the upcoming trial flags this area of confusion. John Roberts, however, should not need to scurry from the Capitol steps over to the Senate chamber immediately after inaugurating Joe Biden on January 20th. While the Constitution designates the Chief Justice, rather than the Vice President, as the presiding officer when the President is tried, it says nothing about the trial of a former president. This makes sense [read more]
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