Law Commons^™

A Strategic Legal Challenge To The Unforeseen Anticompetitive And Racially Discriminatory Effects Of Baseball’S North American Draft, Stephen Ross, Michael James

Stephen F Ross

Major League Baseball (MLB) has honored a single player by retiring his number for every club. Absent special commemorations, no player will wear the number “42” in honor of the man who broke the color barrier to become the first African American to play major league baseball in the modern era: Jackie Robinson. MLB has also honored a single player—chosen from nominees from each individual club—by presenting an annual award for humanitarian service in his name; that honoree is Roberto Clemente. However, the sad reality is that if a fifteen-year-old Jackie Robinson were growing up today in South Pasadena, California, …

Accommodating Labor And Antitrust, Stephen Ross

Stephen F Ross

In this article, the author comments on Professor Michael LeRoy's article "Federal Jurisdiction in Sports Labor Disputes" (2012 Utah L. Rev. 815) and explains why he disagrees with the claim that federal courts improperly invoke the Sherman Act in sports labor disputes.

A Regulatory Solution To Better Promote The Educational Values And Economic Sustainability Of Intercollegiate Athletics, Stephen Ross, Matt Mitten

Stephen F Ross

Currently there are several pending antitrust suits challenging NCAA rules restricting the economic benefits intercollegiate athletes may receive for their sports participation. Although remedying the inherent problems of commercialized college sports (primarily Division I football and men’s basketball) is a laudable objective, a free market solution mandated by antitrust law may have unintended adverse consequences. Judicial invalidation of these rules may inhibit universities from providing many athletes with a college education they would not otherwise receive, by eliminating or reducing the value of scholarships for many players whose economic value is less than the cost of an education. A wholly …

A Rapid Reaction To O'Bannon: The Need For Analytics In Applying The Sherman Act To Overly Restrictive Joint Venture Schemes, Stephen Ross, Wayne Desarbo

Stephen F Ross

This Article reviews the recent and highly publicized district court decision holding that NCAA rules, which bar student-athletes from any compensation for image rights, violated the Sherman Act, and that big-time athletic programs could lawfully agree among themselves to limit compensation to $5,000 annually in trust for each athlete upon leaving school. This Article briefly discusses why the decision correctly found the current rule to be illegal, but also details why, under settled antitrust law, the critical question of how much compensation would significantly harm consumer appeal for college football and basketball is a question better left to marketing science …

Taming The Tigers: Domestic Violence, Legal Professionalism, And Well-Being, Jill Engle

Jill Engle

Domestic violence kills thousands of American women every year. In 2013, one of them was my client. My law school clinic represented a woman divorcing her abusive husband after twenty years of marriage. Three days after we served him with the divorce complaint, he walked into the grocery store where she worked and shot her dead. He then turned the gun on himself, and died from self-inflicted gunshot wounds. The lead student working her case listened in horror as one of our local colleagues who had heard the breaking news described it to her in a phone call to the …

Promoting The General Welfare: Legal Reform To Lift Women And Children In The United States Out Of Poverty, Jill Engle

Jill Engle

American women and children have been poor in exponentially greater numbers than men for decades. The problem has historic, institutional roots which provide a backdrop for this article’s introduction. English and early U.S. legal systems mandated a lesser economic status for women. Despite numerous legal changes aimed at combating the financial disadvantage of American women and children, the problem is worsening. American female workers, many in low-paying job sectors, earn roughly twenty percent less than their male counterparts. Nearly forty percent of single mothers and their children subsist below the poverty level. The recession exacerbated this problem, mostly because unemployment …

Mandatory Reporting Of Campus Sexual Assault And Domestic Violence: Moving To A Victim-Centric Protocol That Comports With Federal Law, Jill Engle

Jill Engle

This Article will examine "mandatory reporting" of campus domestic violence and sexual assault' by faculty members when a student discloses this kind of incident to them. This Article describes the legal and social landscape of mandatory reporting and the attendant challenges, along with the policies and practices that colleges should adopt for faculty reporting to comply with federal law while still remaining sensitive to victim needs.

Confronting Domestic Violence In Higher Education, Jill Engle

Jill Engle

Panel presentation on Student Life, Relationships, and the Law. Panel presented at Pepperdine University.

Veteran Police Officers And Three-Dollar Steaks: The Subjective/Objective Dimensions Of Probable Cause And Reasonable Suspicion, Kit Kinports

Kit Kinports

This Article addresses two issues surrounding probable cause and reasonable suspicion that test the line between subjective and objective standards in Fourth Amendment jurisprudence: the extent to which a particular police officer’s training and experience ought to be considered in measuring probable cause and reasonable suspicion, and the relevance of the officer’s subjective beliefs about the presence of a weapon in assessing the reasonable suspicion required to justify a frisk. Although both questions have split the lower courts and remain unresolved by the Supreme Court, the majority of courts treat them inconsistently, recognizing the importance of an officer’s training, experience, …

Supervisory Liability In Section 1983 Cases, Kit Kinports

Kit Kinports

The topic of this presentation is supervisory liability in Section 1983 cases. Assume for present purposes that a plaintiff's constitutional rights have been violated - that some state official has acted in violation of the Constitution. The question to be addressed here is whether that state official's supervisors can be held liable for damages stemming from the constitutional violation.

The Supreme Court's Love-Hate Relationship With Miranda, Kit Kinports

Kit Kinports

In recent years, the Supreme Court has enjoyed a love-hate relationship with its landmark decision in Miranda v. Arizona. While the Court has not hesitated to narrow Miranda’s reach, it has also been wary of deliberate efforts to circumvent it. This pragmatic approach to Miranda can be doctrinally unsatisfying and even incoherent at times, but it basically maintains the core structure of Miranda as the police have come to know and adapt to it. Last Term provided the first glimpse of the Roberts Court’s views on Miranda, as the Court considered three Miranda cases: Maryland v. Shatzer, Florida v. Powell, …

The Dog Days Fourth Amendment Jurisprudence, Kit Kinports

Kit Kinports

This Article discusses Florida v. Harris and Florida v. Jardines, the two Fourth Amendment drug dog opinions issued by the Supreme Court earlier this year. Together the cases hold that a narcotics detection dog effects a “search” when it intrudes on a constitutionally protected area in order to collect evidence, but that the dog’s positive alert is generally sufficient to support a finding of probable cause. The piece argues that both cases essentially generate a bright-line rule, thereby deviating from precedent that favored a more amorphous standard considering all the surrounding circumstances. Like many purportedly clear rules, the ones flowing …

The Buck Does Not Stop Here: Supervisory Liability In Section 1983 Cases, Kit Kinports

Kit Kinports

The appropriate standard for supervisory liability in Section 1983 cases has been a source of considerable disagreement among federal courts of appeals. In the absence of established Supreme Court authority on the subject, courts have rejected vicarious and negligence liability in favor of a higher culpability requirement, but they have not agreed on precisely what form this higher standard should take. In this article, the Author addresses the need for a uniform standard consistent with the statute's twin goals of compensating the victims of constitutional violations and deterring constitutional infractions.

The author notes at the outset that lower courts have …

Rape And Force: The Forgotten Mens Rea, Kit Kinports

Kit Kinports

In rape cases involving physical violence or express threats of physical harm, proof of the actus reus obviously does establish mens rea with respect to force as well as nonconsent. A defendant who beat or threatened to kill his victim could hardly raise a plausible argument that he did not know he was using force. But, in other circumstances, the defendant's mens rea vis-a-vis force may be less clear, and it may therefore make a difference whether a rape conviction requires proof that the defendant purposely intended to use force, or whether it is enough that he knew he was …

Qualified Immunity In Section 1983 Cases: The Unanswered Questions, Kit Kinports

Kit Kinports

Part I of this Article describes the general policies underlying qualified immunity and the Court's decisions defining the scope of the defense. Part II then addresses two answered questions concerning Harlow v. Fitzgerald's impact on the substantive content of the qualified immunity defense: Is immunity available to the defendant who actually knows that her conduct is infringing the plaintiff's constitutional rights, even if the law governing those rights is not yet clearly established? And should a court take into account the nature of the defendant's governmental responsibilities and other circumstances surrounding her conduct in determining whether the right she violated …

So Much Activity, So Little Change: A Reply To The Critics Of Battered Women's Self-Defense, Kit Kinports

Kit Kinports

Prior to 1970, the term "domestic violence" referred to ghetto riots and urban terrorism, not the abuse of women by their intimate partners. Today, of course, domestic violence is a household word. After all, it has now been ten years since the revelation of football star O.J. Simpson's history of battering purportedly sounded "a wake-up call for all of America"; ten years since Congress enacted legislation haled as "a milestone . . .truly a turning point in the national effort to break the cycle" of violence; and twenty years since Farrah Fawcett's portrayal of Francine Hughes in the movie The …

Justice Blackmun's Mark On Criminal Law And Procedure, Kit Kinports

Kit Kinports

When Justice Blackmun was nominated to the Court in 1970, Americans were consumed with the idea of crime control. In the 1968 presidential campaign, Richard Nixon had called the Supreme Court "soft on crime" and had promised to "put 'law and order' judges on the Court." While sitting on the Eighth Circuit, the Justice had "seldom struck down searches, seizures, arrests or confessions," and most of his opinions in criminal cases had "affirmed guilty verdicts and sentences." Thus, according to one commentator, Justice Blackmun seemed to be "exactly what Nixon was looking for: a judge who believed in judicial restraint, …

Probable Cause And Reasonable Suspicion: Totality Tests Or Rigid Rules?, Kit Kinports

Kit Kinports

This piece argues that the Supreme Court's April 2014 decision in Navarette v. Calfornia, like last Term's opinion in Florida v. Harris, deviates from longstanding Supreme Court precedent treating probable cause and reasonable suspicion as totality-of-the-circumstances tests. Instead, these two recent rulings essentially rely on rigid rules to define probable cause and reasonable suspicion. The article criticizes the Court for selectively endorsing bright-line tests that favor the prosecution, and argues that both decisions generate rules that oversimplify and therefore tend to be overinclusive.

Orders Of Protection In Domestic Violence Cases: An Empirical Assessment Of The Impact Of The Reform Statutes, Kit Kinports, Karla Fischer

Kit Kinports

The authors' concern that domestic violence reform statutes might not be having their intended effect sparked their decision to evaluate the protective order statutes empirically. The authors therefore distributed a lengthy survey to 843 domestic violence organizations nationwide that helped battered women obtain protective orders. The survey focused on three issues. The first issue was access to the courts: Is the protective order remedy accessible to battered women? The second issue related to the procedures for obtaining orders of protection: Are judges granting orders in appropriate cases, and are they awarding the full range of remedies contemplated by the reform …

Iqbal And Supervisory Immunity, Kit Kinports

Kit Kinports

Prior to the Supreme Court’s 2009 decision in Ashcroft v. Iqbal, the federal courts generally acknowledged that high-ranking government officials could be held liable for the constitutional injuries inflicted by their subordinates, though they differed on the appropriate standard of supervisory liability. In Iqbal, the Supreme Court called this case law into question, holding that constitutional tort liability hinges on proof that each defendant, “through the official’s own individual actions, has violated the Constitution.” The Court’s cursory treatment of this issue, without the benefit of briefing or oral argument, was based entirely on the misguided assumption that the doctrine of …

Habeas Corpus, Qualified Immunity, And Crystal Balls: Predicting The Course Of Constitutional Law, Kit Kinports

Kit Kinports

After describing the basic legal and policy issues surrounding the qualified immunity defense and the use of novelty to explain procedural defaults in habeas cases, Part I of this article advocates a standard for both types of cases that asks whether a person exercising reasonable diligence in the same circumstances would have been aware of the relevant constitutional principles. With this standard in mind, Part II examines the qualified immunity defense in detail, concluding that in many cases public officials are given immunity even though they unreasonably failed to recognize the constitutional implications of their conduct. Part III compares the …

Implied Wavier After Seminole Tribe, Kit Kinports

Kit Kinports

Part I of this Article briefly traces the history of the Supreme Court's Eleventh Amendment jurisprudence, focusing in particular on the opinions developing the doctrines of implied waiver and abrogation. Part II makes the case that the doctrine of implied waiver retains validity after Seminole Tribe, at least with respect to federal statutes passed pursuant to the Spending Clause that condition the receipt of federal funds on the states' waiver of the Eleventh Amendment and statutes passed under Congress's other Article I powers that regulate an activity voluntarily undertaken by the states. Finally, Part III considers other potential constitutional …

Evidence Engendered, Kit Kinports

Kit Kinports

Part I of this article briefly describes feminist legal theory and its evolution. Part II then discusses the extent to which evidence as a whole is a gendered topic that reflects predominantly male traits and ideals, and Part III analyzes various specific evidentiary doctrines from a feminist perspective. Finally, Part IV examines way of incorporating feminist theories in teaching an evidence course.

Diminishing Probable Cause And Minimalist Searches, Kit Kinports

Kit Kinports

This paper comments on recent Supreme Court opinions that have used phrases such as "reasonable belief" and "reason to believe" when analyzing intrusions that generally require proof of probable cause. Historically, the Court used these terms as shorthand references for both probable cause and reasonable suspicion. While this lack of precision was unobjectionable when the concepts were interchangeable, that has not been true since Terry v. Ohio created a distinction between the two standards. When the Justices then resurrect these terms without situating them in the dichotomy between probable cause and reasonable suspicion, it is not clear whether they are …

Defending Battered Women's Self-Defense Claims, Kit Kinports

Kit Kinports

This Article contends that many battered women who kill their abusive spouses can legitimately raise the standard self-defense claim. No substantial extension of self-defense doctrine is required to justify the acquittal of battered women on self-defense grounds. Furthermore, no special "battered women defense" is necessary or even desirable in such cases. Part I of this Article summarizes the results of psychological research studying abused women and battering relationships. It further explains the concept of the :battered woman syndrome" which describes the effects of sustained physical and psychological abuse by one's husband. Part II discusses the requirements of a successful self-defense …

Culpability, Deterrence, And The Exclusionary Rule, Kit Kinports

Kit Kinports

This Article discusses the Supreme Court’s use of the concepts of culpability and deterrence in its Fourth Amendment jurisprudence, in particular, in the opinions applying the good-faith exception to the exclusionary rule. The contemporary Court sees deterrence as the exclusionary rule’s sole function, and the Article begins by taking the Court at its word, evaluating its exclusionary rule case law on its own terms. Drawing on three different theories of deterrence – economic rational choice theory, organizational theory, and the expressive account of punishment – the Article analyzes the mechanics by which the exclusionary rule deters unconstitutional searches and questions …

Criminal Procedure In Perspective, Kit Kinports

Kit Kinports

This Article attempts to situate the Supreme Court's constitutional criminal procedure jurisprudence in the academic debates surrounding the reasonable person standard, in particular, the extent to which objective standards should incorporate a particular individual's subjective characteristics. Analyzing the Supreme Court's search and seizure and confessions opinions, I find that the Court shifts opportunistically from case to case between subjective and objective tests, and between whose point of view - the police officer's or the defendant's - it views as controlling. Moreover, these deviations cannot be explained either by the principles the Court claims underlie the various constitutional provisions at issue …

Camreta And Al-Kidd: The Supreme Court, The Fourth Amendment, And Witnesses, Kit Kinports

Kit Kinports

Although few noticed the link between them, two Supreme Court cases decided in the same week last Term, Ashcroft v. al-Kidd and Camreta v. Greene, both involved the Fourth Amendment implications of detaining witnesses to a crime. Al-Kidd, an American citizen, was arrested under the federal material witness statute in connection with an investigation into terrorist activities, and Greene, a nine-year-old suspected victim of child abuse, was seized and interrogated at school by two state officials. The opinions issued in the two cases did little to resolve the constitutional issues that arise in witness detention cases, and in fact muddied …

Justice Or Just Between Us? Empirical Evidence Of The Trade-Off Between Procedural And Interactional Justice In Workplace Dispute Resolution, Zev Eigen, Adam Seth Litwin

Adam Seth Litwin

In this article, the authors examine the relationship between an employer’s implementation of a typical dispute resolution system (DRS) and organizational justice, perceived compliance with the law, and organizational commitment. They draw on unique data from a single, geographically expansive, U.S. firm with more than 100,000 employees in more than 1,000 locations. Holding all time-constant, location-level variables in place, they find that the introduction of a DRS is associated with elevated perceptions of interactional justice but diminished perceptions of procedural justice. They also find no discernible effect on organizational commitment, but a significant boost to perceived legal compliance by the …

Undocumented Workers: Crossing The Borders Of Immigration And Workplace Law, Kati Griffith

Kati Griffith

[Excerpt] This Article endeavors to comprehensively outline the emerging field of immployment law. As this Article specifies below, this field broadly includes empirical, legislative, administrative, judicial, and other analytical inquiries and trends involving workers who bridge the divide between immigration law and workplace law. This Article also proposes directions for future research in this area. Namely, it raises a broad array of compelling questions that merit intensive scholarly, judicial, and policy analysis moving forward. As this Article will show, a hybrid analytical lens reveals otherwise obscured areas of inquiry. It thereby encourages scholars, policymakers, enforcement agency officials, and courts to …