Delivery Drivers Deserve the Whole Package: Package Delivery Drivers and the Transportation Worker Exemption of the Federal Arbitration Act

Package delivery is a ubiquitous part of modern American life, and package delivery driving is a fast-growing occupation in the United States. These drivers work long hours in a fast-paced, highly regimented environment, and because of arbitration agreements they are made to sign, they often cannot go to court to settle disputes with their employers. Under the Federal Arbitration Act (FAA), these arbitration agreements are generally “valid, irrevocable, and enforceable.” However, the FAA includes an exemption (known as the “Transportation Worker exemption”) that excludes arbitration agreements in “contracts of employment for seamen, railroad employees, or any other class of worker engaged in interstate commerce.” The Supreme Court has previously held that this exemption is “limited,” and only applies to transportation workers with a direct link to interstate movement. There is a circuit split around whether package delivery drivers fit into the exemption. The First and Ninth Circuits decided that package delivery drivers fit into the exemption based on a historical understanding of the FAA that embraces Supreme Court precedents from related statutes that more broadly define the boundaries of “engag[ing] with interstate commerce.” In contrast, the Fifth Circuit adopted a strict interpretation of the FAA and held that these drivers do not fit into the Transportation Worker Exemption. This Comment will argue that a broader historical understanding of the FAA is consistent with the scope and purpose of the statute and that package delivery drivers qualify for the exemption

“Tap” into Clean and Safe Water: A Look into the Future of Underinvested Water Infrastructure in Region 4

Mixon notes that under the Biden Administration, federal funding for environmental justice communities burdened by underfunded water infrastructure became a key priority in national policy. However, accessing these resources remains a challenge in EPA Region 4. The historical and contextual foundations of environmental justice and water infrastructure issues in the United States. It examines how, and whether, funding from the Inflation Reduction Act and the Bipartisan Infrastructure Law address these barriers. Two case studies in Jackson, Mississippi, and Lowndes County, Alabama are used to illustrate the real-world impact of systemic underinvestment. The Comment concludes cautiously optimistic, noting that while challenges remain, new programs offer hope for meaningful reform

A Bibliography of Faculty Scholarship

The purpose of this bibliography is to record in one place the substantial body of scholarship produced by the current faculty at the Catholic University, Columbus School of Law. From its humble beginnings under the tutelage of founding Dean William Callyhan Robinson, through its adolescent period when, like so many other American law schools, it was trying to define its pedagogical niche, to its eventual merger with the Columbus University Law School in 1954, the law school at Catholic University has always retained a scholarly and remarkably productive faculty. The sheer quantity of writing, the breadth of research and the impressive list of law journals that include our faculty among their authors are exemplary. The publishing houses which regularly engage our faculty as authors are likewise impressive. One can certainly appreciate why the Columbus School of Law has been, and continues to be, a leader among law schools in scholarly research and writing

The Challenges Facing Academic Freedom and Free Speech

There are growing challenges to free speech and academic freedom on American college campuses. There is pressure from both the political left and the political right to suppress controversial speech on campus, and there are calls to restrict speech that come both from members of the campus community and from those beyond the campus gates. In this difficult environment, it is essential that academics both understand the principles of academic freedom and campus free speech and work to advocate for them

Kickbacks in the Healthcare Space: Resolving the Causation Split

A three circuit split has left federal courts around the country struggling to find and apply the correct causation standard when faced with a False Claims Act suit which has been brought by way of the Anti-Kickback Statute. Uncertainty was created after one court found a lesser standard of causation was acceptable between the kickback and the false claim, while other courts found “but for” causation was required for these cases to survive. This comment analyzes the decisions of the relevant courts, as well as the common law origins of the False Claims Act, canons of construction, as well as relevant prior cases. This comment also analyze this current controversy being played out within a separate circuit, which has been faced with both methods and will soon resolve the issue. These analyses will culminate in the decision that, due to principles of statutory interpretation, previous holdings by numerous courts, as well as the plain meaning of the law, “but for” causation is required in these actions. Requiring “but for” causation does not open the floodgates for healthcare fraud, rather provides clarity when patient’s lives are on the line

The Natural Law Moment in Constitutional Theory

Something new is happening in American constitutional theory. Never before have so many legal scholars sought to ground constitutional theory in the natural-law tradition. Indeed, we can truly say that we are living through a natural-law moment in constitutional theory, a period of unprecedented interest in natural law among constitutional theorists. This immediately calls to mind three questions. First: how, if at all, are the theorists of this moment different from prior theorists who sought to ground constitutional theory in natural law? Second: what explains the rise of natural law in American constitutional theory? Third: what are the implications for constitutional theory of our natural-law moment? This essay sketches answers to these questions, with the caveat that much more could be said about them. This essay was originally delivered as the Herbert W. Vaughan Memorial Lecture at Harvard Law School on April 9, 2024

The Failed Experiment of §230 of the Communications Decency Act: How It Facilitates Exploitation and How It Must Be Reformed

Two truths coexist: The Internet has brought with it tremendous changes for learning, connection, and business; and the Internet and other digital platforms have led to an unprecedented exploitation of children on a scale never before imagined. This is due in large part to §230 of the Communications Decency Act – the law which tech platforms have perverted to immunize them from liability for their activity which causes extreme harm. This duality has led to a current vigorous debate about whether this 1996 law has any value in the 21st Century. This article answers that question with a resounding no, by focusing on the issues surrounding child exploitation. It corrects the false argument made by tech in their attempt to redefine §230’s origin as one singularly focused on Internet freedom. This is a false narrative, ignoring the actual context in which §230 became law: child protection. It then makes the case to reform §230 and return it to its original intent, updating it for the 21st Century. Its in depth review of legislative history, historically contemporaneous media coverage from 1996, and tech litigation strategy reveals two facts: (1) §230 was intended in large part for limited immunity to encourage the protection from child exploitation and (2) tech platforms have systematically litigated throughout the country to expand that immunity to de facto near absolute immunity causing massive harm to children. The article then compares the intentions and promises of the law to the present day climate regarding child exploitation on the Internet, specifically focusing on the problem of Child Sexual Abuse Material (CSAM) – also known as child pornography. Observing the cavernous fissure between one of the main purposes of §230 and the reality of online child exploitation it argues that the need to reform §230 and return it to one of its original purposes is now. This article argues that need is prescient not only because of the grave reality of CSAM online, but also because of one of the very intentions behind §230 – to protect children. The article examines recent legislative proposals to address the problem of CSAM, and proposes a new solution that returns Section 230 to its origins, reverses tech platforms’ false narrative, updates §230 for the current world, and offers a path forward toward the protection of children

Preempting Paradigms: NSMIA, ESG Investing, and the Search for Market Integration

This Comment evaluates the recent lawsuit filed by the Securities Industry and Financial Markets Association (SIFMA) against the Missouri Secretary of State, alleging violations of the National Securities Markets Improvement Act (NSMIA), Employee Retirement Income Security Act of 1974 (ERISA), and commercial free speech. NSMIA significantly altered the regulatory landscape by preempting certain aspects of state securities laws, aiming to streamline regulations and foster national uniformity in securities markets. However, this federal preemption presents a complex dilemma when addressing the surge in ESG investing, where investors prioritize financial returns and social and environmental impacts. Accordingly, this Comment examines the interplay between federal and state securities regulations and their implication on Environmental, Social, and Governance (ESG) investing in light of NSMIA. It delves into the tension between federal preemption and state autonomy, evaluating how NSMIA\u27s preemptive measures affect states\u27 ability to implement ESG-related regulations tailored to local needs and values. It also highlights the pressing challenges faced by securities markets in accommodating the rapid rise of ESG investing, including the need for standardized ESG metrics, enhanced transparency, and regulatory clarity. Drawing on legal analysis and case precedent, this Comment concludes that the Missouri rule violates NSMIA and commercial free speech rights. It then proposes potential strategies for reconciling federal preemption with the growing demand for ESG integration in investment decisions. It advocates for collaborative efforts between federal and state regulators, market participants, and stakeholders to develop a coherent framework based on NSMIA and the Department of Labor’s approach to ESG that allows investors to pursue ESG objectives while respecting the principles of national uniformity and investor protection

Answered By Text

This Essay takes stock of a pivotal moment at the Court: statutory interpretation at center stage in administrative law. The U.S. Supreme Court’s most recent Term saw numerous landscape-shifting administrative law decisions. The most widely discussed was the Court’s elimination of 40-year-old Chevron deference in Loper Bright Enterprises v. Raimondo. The Court’s decisions also effected significant change in the scope of Seventh Amendment jury trial rights and the length of time that individuals, businesses, and associations have to challenge agency actions. But taken together, the Court’s decisions did not radically restructure the administrative state on constitutional grounds. Despite the substantial mindset shift in conceptions of how courts should review agency legal determinations and conduct enforcement actions, the Court rejected or failed to reach several constitutional law challenges. Instead, the Court’s leading cases tended to resolve on carefully measured statutory grounds, at times with Justice alignments that transcended typical ideological or jurisprudential lines. Also, last Term’s most significant administrative law decisions may give important predictive clues about how the Court will apply statutory constraints to free-ranging administrative claims to vast regulatory power in future years

Modalities, Anti-Modalities, and the Social Psychology of Persuasive Constitutional Argument

Constitutional argumentation traditionally relies on modalities such as text, history, doctrine, and structure. However, the exclusion of certain “anti-modalities”—such as policy arguments, fundamentalist views, and emotional appeals—can create a “resonance gap” between legal reasoning and public understanding. This paper explores how social science insights, particularly from cultural cognition theory (CCT) and moral foundations theory (MFT), can help bridge this gap by guiding the strategic incorporation of pathos and moral intuitions into constitutional arguments. Techniques such as self-affirmation, expressive overdetermination, and aporetic reasoning can make opinions more persuasive and inclusive without compromising legal integrity. The paper examines how these strategies can enhance arguments within accepted modalities and potentially address underlying concerns driving the appeal of anti-modalities. Connecting these approaches to Chief Justice Roberts’ emphasis on institutional legitimacy, the paper argues that attending to social psychological dynamics can help the Supreme Court maintain its authority while speaking to a pluralistic nation