Who Gets the Short End of the Stick?: The Impact of the 2023 Merger Guidelines on Companies, Workers, and the Labor Market

(Excerpt) This Note argues that although the introduction of additional criteria of analysis of a merger on the labor market is positive for consumers, workers, employees, and the overall public, the 2023 Guidelines insufficiently balance the effects of a merger for both workers and consumers and fail to consider all relevant factors within the labor market, such as inflation rates and distinguishing between wage and non-wage benefits. Instead, the 2023 Guidelines should balance the implications for each interested group to provide a more accurate decision as to the merits of a merger. Part I of this Note will provide background on the Merger Guidelines generally. Specifically, this Part will address key merger legislation, the ends each statute sought to address, and how case law like Brown Shoe Co. v. United States provided an outline for the first Merger Guidelines in 1968. Part II will detail the evolution of the Merger Guidelines, closely considering societal and political influences, in addition to historical precedent. Part III will address the relevant criteria under the 2023 Merger Guidelines by the Biden Administration and how that has differed from past versions. Part IV will consider the impact of the 2023 Guidelines on the labor market. Finally, Part V of this Note will argue that the 2023 Guidelines fail to consider all interested parties to a merger and, instead, place an unequal emphasis on the labor market while failing to include all relevant factors in their analysis of this market. Instead, a balancing test considering non-wage benefits, inflation, and other market-related factors that are not included in the 2023 Guidelines, as well as the relation to the negative effects of the labor market, should be weighed against the potential procompetitive benefits for all markets

Guaranteeing the Press

A vibrant press is vital to meaningful self-government. Indeed, the indispensability of investigative journalism to democracy raises the stakes of the news industry’s ongoing collapse. Many of the country’s most prominent outlets are shedding jobs as local operations shutter entirely. The downstream effects of this market contraction frustrate the informed exercise of popular sovereignty. Because journalism is a public good in the economic sense, the state must intervene to provision it. To this end, scholars have generally endorsed one of two legal bases for government action. The first argues that the First Amendment can constitutionalize press-favoring market interventions. The second champions legislative action standing alone. Though both approaches have their conceptual merits, neither properly accounts for the reality of an aggrandized and deregulatory Supreme Court. All told, the Court would almost certainly reject the First Amendment arguments press reformers have made while potentially viewing even straightforward legislative action with hostility. More generally, the outsized role of the Court in our system of constitutional governance, much like the decline of journalism, works a harm to democratic self-determination. This Article connects these heretofore separate issues by arguing that the Guarantee Clause of Article IV offers a more promising constitutional basis for government intervention than the First Amendment. The Guarantee Clause commands the United States to provide each state a “Republican Form of Government.” Because the absence of a vibrant press hamstrings republican government, the Clause’s text contemplates the political concerns raised by journalism’s demise. The Clause also provides a grant of constitutional power that has long been interpreted and applied by Congress rather than the Court. This institutional settlement positions the Clause to not only empower press reformers but to resist the entrenchment of juristocracy. The health of democracy—of our republican form of government—would be well served by both

“Don’t Say Gay”: Florida’s Suppression of LGBTQ+ Identities Under the Guise of Parental Empowerment

(Excerpt) Part I of this Note first discusses the legislative and judicial history of Title VII of the Civil Rights Act of 1964 (“Title VII”) and Title IX. Primary attention is directed toward the interplay between the statutes, their similarities, and the theories pursuant to which discrimination may be established under each. Next, this Part discusses the historical debate over the scope of “sex” discrimination under Title VII and Title IX. Then, this Part examines the landmark Supreme Court case Bostock v. Clayton County’s substantial impact on the judicial interpretation of “sex” under Title VII and Title IX. Lastly, Part I concludes with a series of executive interpretations of Title IX and a discussion concerning the role these interpretations play in determining actionable sex-based discrimination nationwide. Part II of this Note examines the DSG Law’s legislative history, with particular attention directed toward the law’s legislative intent. Next, this Part summarizes the arguments of the Law’s proponents, highlighting the Law’s purported legitimate aims of empowering parents in education and protecting children from exposure to inappropriate sex-based classroom instruction and “indoctrination.” Finally, Part II concludes with a discussion of the Law’s opponents’ views, primarily focusing on the Law’s alleged facilitation of discrimination and sanctioned suppression of protected groups based on sex. Part III of this Note argues the DSG Law violates Title IX because it impermissibly discriminates on the basis of sex under both disparate treatment and disparate impact theories. First, Section III.A discusses the rationale for employing Bostock’s expansive interpretation of sex-based discrimination under Title VII to claims under Title IX, arguing that because discrimination based on sexual orientation and gender identity violates Title VII, it likewise violates Title IX. Then, Section III.B explains sex-based discrimination under Title IX using a disparate treatment theory and argues that the DSG Law disparately treats similarly situated students on the basis of sex. Lastly, Section III.C discusses sex-based discrimination under Title IX using a disparate impact theory and argues that the Law disparately impacts similarly situated students and teachers on the basis of sex. Part IV’s proposed solution to remedy facilitation of sex-based discrimination in schools is to amend Title IX to add sexual orientation and gender identity as explicitly protected categories within the statute. Part IV argues that Title IX must be amended for three primary reasons: (1) to prevent clashing interpretations of Title IX dependent upon which presidential administration currently controls; (2) to ensure uniformity in judicial interpretation of sex-based discrimination claims under Title IX; and (3) to validate the identities of and to conclusively establish substantive federal anti-discrimination protection for LGBTQ+ individuals in schools by preempting state laws like Florida’s DSG Law

The Constitutional Problems with Delegating Legislative Power to College Sports

(Excerpt) Part I of this Article discusses the current landscape of college sports, discussing why the NCAA has sought federal litigation to better control the industry and what legislative efforts are underway to potentially grant those wishes. Part II then reviews case law that defines the contours of the private non-delegation doctrine, focusing on the Amtrak litigation and National HBPA and how those two strings of cases place NCAA-related legislative efforts in constitutional peril. Part III will then closely review the currently proposed legislation that would, if passed, grant regulatory power to the NCAA or a new private entity, discussing similarities and differences in motive, structure, and the historical contexts to the regulatory schemes previously struck down for being violative of private non-delegation principles alongside basic due process rights—especially given that universities are arguably market competitors to the athletes they would regulate. Finally, the Article will conclude by discussing the impact the focused level of government oversight necessary to pass a constitutional federal bill granting legislative regulatory power to college sports, how that bill would change the NCAA and college sports more generally, and whether such changes are even worth it considering the goals and interests of the college sports industrial complex

The Law and Ethics of AI Creativity

(Excerpt) This Article comprises three parts. In Part I, after demonstrating that creativity is a social process, I explore the ethical principles of originality, attribution, and authenticity of creative activities. In Part II, I scrutinize the opacity of AI systems in the collection, utilization, and generation of works, highlighting the need for a greater focus on the legal and social problems arising from these black box processes. Lastly, in Part III, I explore why the ethical principles of originality, attribution, and authenticity should govern AI creativity, and how they would lead to the adoption by AI companies of filtering and watermarking responsibilities

Power, Responsibility, and Judicial Deference to Police Expertise in Fourth Amendment Decisionmaking

(Excerpt) Courts have long deferred to police expertise in Fourth Amendment decisionmaking, most prominently in their application of the reasonable-person standard in assessments of probable cause and reasonable suspicion. Scholars have often bemoaned such deference as an abdication of the judicial obligation to make independent determinations of Fourth Amendment reasonableness. Nonetheless, the Supreme Court of the United States and lower courts are unlikely to abandon their view of police officers as possessing elevated knowledge, skill, experience, and perceptual abilities that merit judicial consideration in the evaluation of Fourth Amendment probabilities. On the other hand, the Court has tended to assume that certain technical skills are beyond the ken of police officers. Yet, given the similarities between tort law’s reasonable person standard and the Supreme Court’s invocation of that norm in its Fourth Amendment jurisprudence, attention to tort law’s demands of people who engage in risky conduct could inform a more balanced jurisprudence. Specifically, as in tort law, courts should insist that police officers obtain expertise commensurate with the risks their activities pose to the public, including awareness and avoidance of the flawed heuristics on which laypeople might rely to draw false conclusions about the likelihood of criminal conduct. In some instances, this principle would require police officers to rely on quantitative analysis to guide their judgments. Likewise, tort law’s assessment of reasonableness for people who already possess specialized skill and knowledge could inform the development of a more nuanced approach to the analysis of police expertise under the Fourth Amendment. If police officers are, in fact, exceptionally capable of perceiving circumstances indicative of criminal activity, then courts must also hold police officers accountable for failing to notice potentially exculpatory circumstances to which their greater perceptive abilities should have alerted them. In this Article, I will provide a sustained assessment of the ways in which tort law’s reasonable person standard might guide judicial treatment of police expertise in deciding whether probable cause or reasonable suspicion established a legitimate basis for a Fourth Amendment search or seizure. I will examine not only the doctrinal implications of tort law’s balanced approach but also the normative basis for balancing deference to expertise with accountability for exercising one’s superior abilities responsibly and for obtaining expertise sufficient to offset the risks one imposes on others. In Part I, I will describe the history of the Supreme Court’s treatment of law enforcement expertise, including its sense of the limits of that expertise, in its analysis of Fourth Amendment probability. I will also discuss scholarly reactions to judicial deference to police training and experience. In Part II, I will examine tort law’s reasonable person standard, including the ways in which negligence law deals with superior mental attributes, and I will discuss the justifications for that approach. In Part III, I will evaluate the implications of tort law’s approach to superior knowledge and experience for the assessment of probable cause and reasonable suspicion. In circumstances in which the facts are susceptible to quantitative analysis, these principles suggest that courts should require police to acquire expertise that judges have assumed is beyond the scope of law enforcement ability. On the other hand, in circumstances requiring qualitative analysis, tort law suggests that courts should hold police responsible for using the faculties judges tend to assume they already possess, not merely to ferret out crime but also to protect the interests of people their investigative conduct puts at risk. Overall, I will contend that the arguments for tort law’s approach to superior mental capacity are equally compelling in the Fourth Amendment context

Fusing to Combat Slavery: Third-Party Politics in the Pre-Civil War North

This Article examines how antislavery third parties used electoral fusion—the practice by which a candidate can appear as the nominee of multiple political parties—to mobilize antislavery political power in the 1840s and 1850s. Highlighting several striking and consequential examples of how Liberty, Free Soil, and early Republican partisans cross-nominated candidates also supported by another party, this Article sheds light on a pivotal chapter in the long and important history of this electoral tactic. The critical role electoral fusion played at key points in American political history casts further doubt on the legitimacy of contemporary state anti-fusion restrictions, whose constitutionality is currently being contested by an ever-growing series of legal challenges across the country. Given the potential for electoral fusion to facilitate cross-ideological coalitions within the confines of the American two-party system, these issues have taken on outsized importance today