To the 117th Congress: Pass the FAIR Act

(Source) The right to a jury trial in civil actions, preserved by the Seventh Amendment to the United States Constitution, is quietly being eviscerated. As arbitration provisions have become fixtures within standard-form employment and consumer contracts, millions of individuals may no longer utilize courts to press a variety of civil actions, including medical malpractice, sexual harassment, and discrimination suits. Those individuals are forced to present their disputes before private arbitrators in relatively informal proceedings: arbitrators need not adhere to any rules of evidence and, unlike judges, they do not need to articulate the reasoning behind their awards.  Mandatory arbitration harms employees and consumers. According to Alexander Colvin, a professor of dispute resolution and dean of the Cornell University ILR School, arbitration tends to suppress employment-related claims because claimants are less likely to succeed in arbitration than they are in court and, when they do succeed, the awards are typically smaller than they are in court. Statistics suggest a similar plight for consumer-claimants. For example, according to a New York Times study, Verizon, which had more than 125 million customers as of 2015, faced only sixty-five consumer arbitrations between 2010 and 2014. Moreover, many arbitration provisions in consumer contracts contain class [read more]

So, What Actually Is the Rule of Law?

(Source) Over the past year, public discourse increasingly cited the value of the rule of law. In response to the January 6 insurrection, then-President Trump claimed that “Making America Great Again has always been about defending the rule of law.” About a month later, President Biden remarked that one of “America’s most cherished democratic values. . . [is] respecting the rule of law.” What do public figures mean when they refer to the rule of law? Do they invoke the phrase in the same way they purport to know what “the American people” want, or does the idea connote much more than some amorphous optimism in our way of government. Modern legal philosophers such as Joseph Raz and F. A. Hayek have provided normative characterizations of what it means for the rule of law to govern a legal system. Raz, in particular, emphasizes that a society governed by the rule of law “must be capable of guiding the behavior of its subjects,” and identifies certain principles that derive from the rule of law, such as an independent judiciary and accessibility of courts. However, the concept boasts a history stretching back to Greek philosophers, and the ways in which the rule [read more]

It’s 2021; Let’s Talk About Breastfeeding

(Source) It’s no secret that women’s participation in the labor force increased dramatically in the second half of the twentieth century. In the past five years, women have held more than half of all management occupations and earn more than half of all bachelor’s, master’s and doctorate degrees. Perhaps most notably, a record number of women now serve in the 117th Congress—still only about a quarter of all members, but a record nonetheless. So, with women holding fast at about 47% of the labor force in 2020[1] and occupying more positions of power than ever before, why do some women still struggle to breastfeed successfully, especially while working? Let’s start with a quick primer on breastfeeding to get everyone up to speed. Breastfeeding promotes positive outcomes in children and mothers. Breastfed babies are better protected from diarrhea, pneumonia, and certain      infections, less likely to develop asthma, at a reduced risk of sudden infant death syndrome (“SIDS”), and less likely to become obese. Mothers who breastfeed also have a decreased risk of breast and ovarian cancers and experience more rapid weight loss after birth. The World Health Organization (“WHO”) and the American Academy of Pediatrics (“AAP”) both recommend exclusive breastfeeding for [read more]

The Constantly Shrinking Fourth Amendment

(Source) “Each man’s home is his castle.” This is the notion that the Fourth Amendment seeks to enforce. The Fourth Amendment guarantees protection to Americans against unreasonable searches and seizures in their own homes. Authorities cannot search a person’s home, papers, or effects without a warrant signed by a judge, upon probable cause and particularly describing the place to be searched and the persons or things to be seized. What this effectively means is that government officials cannot walk into one’s home, unwarranted, and do as they please in an attempt to find evidence of a crime. Naturally, then, the Fourth Amendment offers protection that is crucially important and guards the larger right to privacy that is fundamental to every human being. The right to privacy is not expressly mentioned in the Constitution, but is inferred through interpretation. One’s private property is hardly private if the police and other officials can walk in and search the premises without a warrant or one’s permission. Despite the evident significance of the Fourth Amendment right, judicial interpretations of the Fourth Amendment and its exceptions over the past few years have diluted the protection afforded by the Fourth Amendment. Such court holdings have created [read more]

Taxation Without Representation: The D.C. Statehood Question Renewed

(Source) Sirens blaring and helicopters overhead are a normal occurrence in Washington, D.C. On January 6, however, the sounds were persistent with no end in sight. The lower third of several news networks read “Trump Protestors Storm U.S. Capitol.” At around 12:00 p.m., D.C. residents received an alert issuing a curfew from Mayor Bowser telling them all to stay inside their homes. The news coverage continued for hours and most commentors were perplexed that the National Guard had not gotten this situation under control. When there were peaceful protestors on Black Lives Matter Plaza, they were tear-gassed to make room for a presidential photo-op. Where was the National Guard to protect our capital city now that it was under attack? The National Guard was not there because Washington, D.C. is not a state, and therefore does not have a governor who can deploy the National Guard. The D.C. National Guard is under the control of the President (whom the insurrectionists were trying to keep in power) and orders to deploy the guard are usually administered by the Secretary of the Army after a request from the Mayor. In one of the darkest days in modern-day American history, the D.C. National [read more]

Zooming in on Student Surveillance: Protecting Student Privacy in the Age of COVID-19

(Source) Exams are stressful even under the best of conditions. Exams taken virtually, as so many students over this previous year have found out, have presented a brand new set of challenges that can magnify student stress. But, imagine for a moment that you cannot even get into your exam, because the exam software does not recognize your face, or that the eye-movement tracking system built into the exam software could mean that looking away momentarily from your computer screen would result in you being flagged for cheating. This is, in fact, the reality that ample students have faced over the past year of virtual learning and testing. Indeed, when COVID-19 hit in early 2020, teachers and their students, from kindergarten to graduate school, had to quickly pivot to virtual learning and testing modalities. While this transition was certainly a necessity to keep students, their teachers, and their families safe, virtual learning and testing nonetheless raises civil liberties concerns around privacy and freedom of speech and perpetuates inequality for those who are people of color, low income, non-binary, or neurodivergent. In the United States, unlike in other countries, there is no “national” privacy law. Rather, a patchwork of laws make [read more]

Running Out of Beds: How COVID-19 Demonstrates the Need to Repeal State Certificate of Need Laws

(Source) During the onset of the COVID-19 pandemic in the United States, states struggled in part because the disease caused demand for hospital beds to outstrip supply. Around one month into the pandemic, in New York City, for example, only about 300 intensive care unit (“ICU”) beds remained available. States reacted by creating more medical facilities, and New York City mobilized public and private hospitals to create more beds and ICUs. The sudden spike in demand for medical care brought into question existing certificate of need laws. Certificate of need (“CON”) laws require anyone who wants to construct a new healthcare facility to obtain permission from the state first. The state often requires that the applicant pay a fee and establish that there is a public need. Many states also allow interested parties to object to the new facility. New York passed the first certificate of needs of law in the mid-1960s. The idea behind these laws was to allow states, instead of the market, determine whether there is a public need for additional medical facilities. In normal times, perhaps the idea of states restraining the spread of medical facilities may make sense. However, these laws hampered states’ responses to [read more]

Shallow Measures: International Regulation of Noise Pollution in Our Oceans

(Source) Recently, several researchers and scientists from all over the world released a survey in the journal Science consisting of over 500 studies done on the far-reaching effects of an everyday phenomenon: noise, specifically noise as a pollutant of marine ecosystems. According to the survey, the soundscape of our oceans is dramatically changing. Climate change has altered geophysical sources of noise, such as sea ice and storms, in addition to affecting populations of noise-producing marine animals. Furthermore, human involvement in the form of vessels, active sonar systems, energy and construction infrastructure, and seismic surveys – just to name a few – are generally on the rise. Depending on the water pressure and temperature, sound can travel for thousands of miles without decreasing considerably in energy. Although research has not yet definitively connected noise pollution with a higher mortality rate for marine animals, scientists are concerned about the long-term effects it could have on our planet’s oceans. All of this far-reaching, human-generated noise compromises the hearing ability of marine animals, which disrupts their normal behavior processes for finding food, mating and migrating, and communicating with each other. For example, in 2017 the Obama Administration considered the use of seismic airgun arrays [read more]

President Biden’s Self-Defeating Environmental Dyad

(Source) Appeasing environmentalists and Democrats, President Joe Biden recently signed an executive order halting progress on the Keystone XL Pipeline, a perennial project to construct an underground pipeline that would distribute 830,000 barrels of crude oil every day from Calgary, Canada to the Gulf of Mexico. The executive order fulfilled one of President Biden’s campaign promises, creating a perception of political fealty on day one of his presidency. The decision was, however, simultaneously met with criticism by some Republicans, who have suggested that Biden’s inaugural commitment just hours earlier to unify the country, which is reeling from partisan division, was fleeting or disingenuous. President Biden should reverse course on his mandate to nix the pipeline and on his twin mandate to temporarily prohibit the issuance of new permits for fracking on federal lands. This environmental dyad has, thus far, stagnated environmental progress, destroyed thousands of current and future American jobs, and imperiled the bipartisanship Biden has sought to court with Republicans.   The most self-defeating, even shortsighted, aspect about President Biden’s environmental dyad is its lack of any salutary effect on the environment. His nixing of the pipeline merely swaps one method of oil distribution for a dirtier and lengthier [read more]

Immunity Passports: A Silver Bullet or a Security Blanket?

(Source) As COVID-19 infection rates remain high, many wonder when and how life will return to normal. The policies currently in place to limit the number of new infections have primarily focused on restricting movement and access to public spaces. While this has helped limit the spread of the virus, it has also resulted in one of the largest global economic recessions in decades. The combination of unemployment, fragmented trade streams, a reduction in spending, and a reduction in local and international travel has led experts to predict a global economic contraction of GDP of just over 5%.  Leaders in several countries, most notably Chile, the United States, the United Kingdom, and Germany, have considered the creation of immunity passports as a potential strategy to safely reopen and stabilize their nation’s economies. An immunity passport is an official document that would certify when an individual has acquired immunity, either through infection and subsequent recovery or by vaccination, to COVID-19. While immunity passports could provide national and local governments with a way to return to pre-pandemic life, several practical, legal, and ethical considerations raise questions about the efficacy of such a program. If governments hope that immunity passports will effectively limit [read more]
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