Preparing to Open Up Shop: How the Supreme Court Set the Stage to Prohibit Public-Sector Agency-Shop Provisions in Harris v. Quinn, 134 S. Ct. 2618 (2014)
Chris Schmidt
In 2014, the United States Supreme Court held in Harris v. Quinn that a quasi-public employee cannot be compelled to pay even her fair share of collective bargaining costs associated with union representation because such agency-shop provisions constitute compelled speech in contravention of the First Amendment. The decision was significant standing alone, as it directly affects personal assistants in the twenty-five states that are not so-called “right-to-work” states, and likely similarly applies to a vast number of other individuals who can be properly characterized as quasi-public. Perhaps more important is what Harris might mean for the larger world of public-sector unions, however. This Note posits that Harris was a sign that the Court may soon reconsider its previous holding in Abood v. Detroit Board of Education, a 1977 decision that upheld fair-share provisions in the public sector notwithstanding the same First Amendment concerns at issue in Harris. Part II provides an overview of public-sector unions and the role organized labor plays in our country today. Part III discusses the facts in Harris, Justice Alito’s majority opinion, and Justice Kagan and Co.’s dissent. Lastly, Part IV posits that the Court was correct in holding agency-shop provisions violate the First Amendment, but should have affirmatively overruled Abood to hold such provisions unlawful for quasi-public and public-sector employees alike. Nonetheless, Part IV also suggests that Harris’s temporary restraint is in line with the Roberts Court’s practice of “stealth overruling”—that is, chipping away at precedent so as to lay the foundation for a subsequent case to deal the fatal blow. It is clear today that the Note was correct in predicting the Court would provide itself an opportunity to overrule Abood and use Harris as support, as the Court indicated it would do so when it granted cert in Friedrichs v. California Teachers Ass’n. What is less clear, however, is whether the Note correctly predicted the coming demise of fair-share provisions with the Court now almost certainly split 4-4 on the issue and the next Justice holding the swing vote.
Free Exercise and Substantial Burdens under Federal Law
Mark Strasser
I. Introduction
II. The Ever-Changing Free Exercise Jurisprudence ... A. Reynolds ... B. Modern Jurisprudence Suggesting No Exemptions Are Required ... C. The Jurisprudence Does an About-Face ... D. An Implicit Modification of the Jurisprudence? ... E. Back to Robust Protection? ... F. Tepid Protection?
III. The Congressional Response to the Court’s Free Exercise Jurisprudence ... A. RLUIPA ... B. RFRA ... C. The Circuits’ Quandary
IV. Conclusion
The Concept of Public Policy in Law: Revisiting the Role of the Public Policy Doctrine in the Enforcement of Private Legal Arrangements
Farshad Ghodoosi
The doctrine of public policy is a channel through which public law enters private law and bars it from actualizing its normal legal consequences. Although public policy is an old doctrine in common law and other legal systems, it is not clear which aspects of public law can enter the arena of contract (private) law and make it unenforceable. The phrase public policy is used and pled in various national and international tribunals on a daily basis. Despite its importance, the literature surrounding the doctrine of public policy is extremely limited. This Article first briefly traces the genealogy and paradigm shifts of the doctrine of public policy in the history of common law. Subsequently, it scrutinizes the ramifications emanating from developments of legal theory as well as the emergence of the welfare state in transformation of the notion of public policy. It then explains the doctrine of public policy from the law and economics perspective and shows its shortcomings. In the last section, the Article argues that the concept of public policy is a not a single concept but consists of three distinct strands—public interest, public morality, public security—each with a separate pedigree and logic requiring a separate method for its analysis. The public interest category refers to instances where the public policy exception can be determined employing cost-benefit analysis by weighing the interests of private parties versus societal interest. The second strand, public morality, attempts to safeguard the communal values by allowing the judiciary to lend its enforcement apparatus to private legal arrangements that are injurious to common morality. Lastly, public security is structured around the exceptionalist logic of modern statehood, which aims to protect states’ survival interests. This Article argues that in instances where public morality and public security are seriously at stake, private law is subsumed by the mandate of public policy. However, in the majority of cases falling under the category of public interest, courts should follow the balancing approach with the single test of avoiding negative externalities.
The Collective Fiduciary
Lauren R. Roth
Can fiduciaries be made to serve public goals? The movement under the Patient Protection and Affordable Care Act (“ACA”) toward universal access to health insurance requires us to focus on the fiduciary relationships between large organizations providing access to healthcare and the populations they serve. These relationships have become a collective undertaking instead of a direct, personal relationship. In this Article, I introduce the concept of the collective fiduciary in response to the shift toward uniform, national goals in the realm of health insurance and healthcare. Only through a collective approach can we hold fiduciaries accountable for the welfare of many instead of one or a few individuals. While other scholars have focused on the individual whose fortunes or health are controlled by a fiduciary, this has made it difficult to collect information about fiduciary actions and obtain consistent and coherent decisions from fiduciaries. My argument is that this is not a problem that can be fixed at the level of the individual fiduciary or individual beneficiary. I examine the expansion of the role of the fiduciary as a result of growing demand for private welfare benefits in the United States. My concern is with the expansion of health insurance and the administration of health benefits. If patients are denied benefits, then they are effectively denied access to service providers. In a space where the government has been, until now, largely absent both by choice and because of a lack of agreement on policy direction, individual decisions by fiduciaries add up to the only large scale policy existing for private benefits. Fiduciaries can and will undo the goal of expanding access to healthcare under the ACA unless ERISA’s fiduciary regime (the example I focus on in this Article) is altered. Though I explore several possible solutions, I ultimately argue that fiduciary duties are only meaningful when denials of benefit claims are supervised and capped by government actors.
The First Amendment and the Internet: The Press Clause Protects the Internet Transmission of Mass Media Content from Common Carrier Regulation
Fred B. Campbell
I. Introduction
II. Communications Regulation and Net Neutrality ... A. Regulation of Plain Old Telephone Service ... B. Regulation of Data Processing and Dial-Up Internet Services ... 1. Forbearance from Regulating Enhanced and Information Services ... 2. Regulations Subsidizing the Dial-Up Internet ... a. Common Carrier Resale ... b. Access Charge Exemptions ... C. Pre-Common Carrier Regulation of Broadband Services ... 1. Competition Begets Net Neutrality Theory ... 2. Initial Broadband Classification Decisions ... 3. Adjudicatory Net Neutrality Decisions ... 4. First Internet Order ... D. Reclassification of Broadband as a Common Carrier Service
III. Dissemination of Mass Media Communications ... A. Application of the Press Clause to Dissemination ... B. The Distinction between Speech and Conduct ... C. The Distinction between Mass Media and Common Carrier Communications ... D. The Implications of Denying First Amendment Protection to ISPs ... 1. No Constitutional Right to Access Mass Media Communications Systems ... 2. Lack of Standing to Invoke First Amendment against Government Censorship
IV. Level of First Amendment Scrutiny ... A. ISPs Disseminate Print Media ... B. The Rules Are Content-Based ... 1. The Rules Are Content-Based on Their Face ... 2. The Purpose of the Rules Is Content-Based ... 3. The Gatekeeper Theory Is Content-Based ... C. The Rules Are Speaker-Based ... D. Cable Television Precedent Is Inapplicable ... E. The O’Brien Distinction between Speech and Conduct Is Inapplicable
V. Application of First Amendment Scrutiny ... A. Assuring a Diversity of Non-ISP Speech ... B. The Gatekeeper Theory Is Unsupported by Substantial Evidence ... C. The Gatekeeper Theory Is Inconsistent with Established Precedent ... 1. Telegraphy and Telephony ... 2. Broadcast and Cable Television ... 3. Mail Carriage ... D. Issue Preclusion Does Not Apply ... E. There Is No Factual Finding of Scarcity
A Fair Competition Theory of the Civil False Claims Act
bhildebrand
On December 4, 2015, the Supreme Court granted certiorari in Universal Health Services v. United States ex rel. Escobar, a fraud case that may reshape the future of $1.9 billion of annual healthcare fraud recoveries in the United States. Julio Escobar and Carmen Correa lost their daughter to a seizure while she was under the care of Universal Health Services. Escobar and Correa subsequently learned that the staff caring for their daughter were not licensed or certified. They filed a whistleblower action under the False Claims Act alleging that Universal Health had defrauded the government, which had paid for their daughter’s medical care. Federal courts have expressed uncertainty as to whether Universal Health’s behavior legally constitutes fraud. For example, one court has held that lying about a supervising physician’s credentials does not constitute fraud, while another court has held that lying about a physician provider does constitute fraud under the statute. The Supreme Court’s decision may help clarify the presently convoluted fraud analysis.
In A Fair Competition Theory of the Civil False Claims Act, a timely article published by the Nebraska Law Review, Professor David Kwok examines the present conflicting fraud doctrines that courts have used and proposes a new standard to help all parties understand when fraud has occurred. He advances the standard of fair competition as the basis for fraud liability under the False Claims Act. If competitors are capable of complying with regulations, it is unfair for some companies to knowingly violate those same regulations while escaping fraud liability under the statute.
Everything Old Is New Again: Enforcing Tribal Treaty Provisions to Protect Climate Change-Threatened Resources
Elizabeth Ann Kronk Warner
In an age when vulnerable tribes and Native communities around the country are threatened by the impacts of climate change, advocates seek new and innovative legal tools to provide protection for endangered resources. To date, legal tools such as litigation and adaptation plans have been used with varying levels of success. For the first time, this article considers whether tribal treaties with the United States may prove helpful in protecting threatened resources. Treaties historically played an important role for many tribes, as they have a profound cultural connection and are a powerful expression of tribal sovereignty. Also, when courts find treaties applicable, tribes have generally been successful in protecting the resources at issue. In considering whether such historical documents may be applied in the climate change context, this article begins by looking at the treaty language of specific tribes, which have expressed interest in shielding treaty-protected resources, and also methodologies of interpreting treaties. The article then goes on to consider how such treaty language might be used in a legal claim against the United States, speculating as to uses under both domestic and international law. Ultimately, the article concludes that it may be possible to use treaty language to protect resources threatened by climate change under certain circumstances.
Restoring the Civil Jury in a World without Trials
Dmitry Bam
Early in this nation’s history, the civil jury was the most important institutional check on biased and corrupt judges. Recently, concerns about judicial bias, especially in elected state judiciaries, have intensified as new studies demonstrate the extent of that bias. But the jury of Hamilton, Madison, and Jefferson is nowhere to be found. In fact, the civil jury is virtually dead. It is used in less than 1% of all civil cases, and even when it makes a rare appearance, the jury’s powers have been significantly curtailed. This Article argues that we must reimagine the civil jury to match the framework of modern civil litigation and modern civil procedure. Civil litigation in the 21st century revolves around pre-trial practice, including the motion to dismiss and the motion for summary judgment. Today, judges alone decide those dispositive motions. And when the judges deciding these motions are biased, the jury is conspicuously absent. I propose that jurors serve alongside judges to decide fact-intensive dispositive motions on what I call Hybrid Judicial Panels. This proposal restores the jury’s historical power to control biased judges, and offers the people themselves a renewed role in modern civil litigation.