Law Commons^™

Employment Status For “Essential Workers”: The Case For Gig Worker Parity, Miriam A. Cherry

All Faculty Scholarship

This Article explores what I call the “essential worker paradox”: During the pandemic, gig workers have been recognized as providing critical and important services. At the same time, the law has yet to recognize gig workers fully and to commit to providing them with the same basic protections as employees. The Article argues that the stark difference in treatment between gig workers and regular employees has long created unfairness. While views of gig work as a side hustle or work driven by customer convenience may have prevailed in the past, now the meal delivery driver and the on-demand grocery shopper ...

The Fourteenth Amendment And The Heart Of The Constitution, Guy Chet

SLU Law Journal Online

Since the nineteenth century, Americans have worked consistently to liberate their national government from the Constitutional constraints placed on it by Madison and his colleagues. This effort has transformed the United States from a federated republic in which local communities governed themselves into a modern managerial nation-state that is governed from the center. In this article, Dr. Guy Chet argues that the key to this transformation – of the Constitution and of the United States – was the Fourteenth Amendment.

The Fight For Pay: How The Supreme Court Ultimately May Use Antitrust Law To Allow Student-Athletes To Be Paid, Josef Nilhas

SLU Law Journal Online

The NCAA has long avoided the idea of compensating players. Josef Nilhas discusses how now, after years of inaction, this decision may ultimately lay in the hands of the Supreme Court from the perspective of federal Antitrust law.

Black Lives Matter: Bridging The Gap Between Accountability And Justice, Nicole Chabloz

SLU Law Journal Online

The United States has a long history of police violence against Black Americans. In this article, Nicole Chabloz discusses the Chauvin verdict and the impact it will have on the fight for justice and equality.

Contract Clauses Under Scrutiny: Covid-19, Mike Zawalski

SLU Law Journal Online

Force majeure clauses have saved many businesses that have been unable to perform their contractual obligations during the COVID-19 pandemic. In this article, Mike Zawalski discusses case law on force majeure provisions in the time of the COVID-19 pandemic.

What Can We Learn From Amy Coney Barrett’S First Opinion?, Blake Stocke

SLU Law Journal Online

In her first opinion, Justice Amy Coney Barrett wrote an opinion that limits the Freedom of Protection Act. In this article, Blake Stocke will explore how her opinion interprets the Act, and what we can learn from this opinion moving forward.

Fallout Avoided? Zoombombing Litigation Update, Kaitlin Carpenter

SLU Law Journal Online

In this article, Kaitlin Carpenter discusses Zoom’s dark side in a practice called Zoombombing, and also provides an update on the lawsuit addressing this problem.

Freedom Of Tweets: The Role Of Social Media In A Marketplace Of Ideas, Patrick Ganninger

SLU Law Journal Online

One of the more polarizing political issues of 2021 was when social media platforms like Twitter permanently banned President Donald Trump from their platforms. As the law stands, most experts agree that the First Amendment does not restrict online social media platforms from exercising broad discretion to censor content or individuals. However, even if social media platforms have a right to unilaterally ban users from their platforms, should they? More importantly, should we let them? In this article, Patrick Ganninger explores these important questions.

Missouri’S Chance At Low-Cost Renewable Energy ‘Gone With The Wind’?, Jeff Becker

SLU Law Journal Online

The Grain Belt Express, a large-scale wind energy transmission line that will span across much of the Midwest, may now be blocked from proceeding in Missouri if House Bill 527 passes in the state Senate. In this article, Jeff Becker advocates against the passage of the bill, arguing that it is contrary to the state's public interest because it would deprive Missourians of the substantial benefits the project, both economic and environmental.

The Fate Of The Public Charge Rule Following A Covid-19 Era, Jacquelyn Sicilia

SLU Law Journal Online

Within two weeks of the new administration, President Biden sought immediate review of the long existing Public Charge Rule and former President Trump's changes to it. In this article, Jacquelyn Sicilia discusses the recent litigation on the Public Charge Final Rule and where it stands today.

Democracy Under Attack: Iowa’S ‘Bloody Second’, Dylan Mccloskey

SLU Law Journal Online

The 2020 election is in the past for most Americans, but not for Iowans who live in the Second Congressional District where a contested election challenge is just beginning. Dylan McCloskey discusses how a contested election works and what impact this may have on our democracy.

*Photo by Darren Halstead on Unsplash

My Body, My Temple: The Constitutional Requirement For Religious Exemptions To A Covid-19 Vaccination Mandate, Ben Davisson

SLU Law Journal Online

While the COVID-19 crisis has caused many to fear the threat that the virus poses to the health and safety of themselves and their loved ones, for others, and particularly for those with certain religious beliefs, the cure is worse than the disease. The possibility of a government mandated vaccine has caused extreme anxiety for many Americans. In this article, Ben Davisson discusses the constitutionality of mandatory vaccination programs and how such programs may come into conflict with the Free Exercise Clause of the First Amendment.

Hipaa-Phobia Hampers Efforts To Track And Contain Covid-19, Lee Hiromoto M.D., J.D.

SLU Law Journal Online

The Health Insurance Portability and Accountability Act (HIPAA), enacted by the US Congress 1996, laudably protects medical privacy in healthcare settings. However, this federal law has created a culture of fear that limits current efforts to address the COVID-19 pandemic. Healthcare providers, who are covered by HIPAA, may be reluctant to disclose information about outbreak clusters for fear of violating the law. Healthcare organizations, who are also covered by the law, still rely on fax machines to avoid violating HIPAA’s data security requirements. And the scrupulous rule-following in healthcare has given independent life to a HIPAA boogeyman. Thus, officials ...

The Cdc’S Moratorium: Will The New Year Bring About An Eviction Crisis?, Matt Donahoe

SLU Law Journal Online

The new relief bill has extended the eviction moratorium another month. In this article, Matt Donahoe discusses whether this will provide tenants the necessary protection to avoid an eviction crisis as well as whether the moratorium is an infringement upon a landlord’s constitutional rights.

Codetermination In Theory And Practice, Grant M. Hayden, Matthew T. Bodie

All Faculty Scholarship

A system of shared corporate governance between shareholders and workers, codetermination has been mostly ignored within the U.S. corporate governance literature. When it has made an appearance, it has largely served as a foil for shareholder primacy and an example of corporate deviance. However, over the last twenty years—and especially in the last five—empirical research on codetermination has shown surprising results as to the system’s efficiency, resilience, and benefits to stakeholders. This Article reviews the extant American legal scholarship on codetermination and provides a fresh look at the current state of codetermination theory and practice. Rather ...

Lessons Learned: Strengthening Medicaid To Address Health And Economic Emergencies, Nicole Huberfeld, Sidney Watson

All Faculty Scholarship

COVID-19 has disproportionately harmed low-income people, especially Black and Latino populations, seniors, and people with disabilities. Medicaid plays an essential role in providing coverage and access to care for these populations. As COVID-19 disrupted employment, earnings, and insurance coverage, Medicaid enrollment increased, in part because Congress offered states increased Medicaid funding in return for maintaining eligibility and enrollment for the duration of the public health emergency (PHE). At the same time, many states expanded eligibility and streamlined enrollment to assure that people could secure and keep coverage. Such policies resulted in more than 5.3 million more Americans having Medicaid ...

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Saint Louis University Law Journal

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Saint Louis University Law Journal

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Covid-19 And Public Accommodations Under The Americans With Disabilities Act: Getting Americans Safely Back To Restaurants, Theaters, Gyms, And “Normal”, Frank Griffin

Saint Louis University Law Journal

COVID-19 permanently changed the way places of public accommodation like restaurants, theaters, medical facilities, arenas, gyms, and many other proprietors of mainstream American activities must operate in order to accommodate people with newly-defined, COVID-19-related disabilities under Title III of the Americans with Disabilities Act (ADA). The required modifications will affect all patrons and employees of these establishments. Under the ADA, places of public accommodation are barred from discriminating against people with disabilities in the full and equal enjoyment of goods, services, and facilities. Infectious diseases like tuberculosis and HIV have been categorized as disabilities under the ADA, and COVID-19 is ...

As A Matter Of Fact: Reasserting The Role Of Basic Facts In Veterans Court Jurisprudence, Jeffrey D. Parker

Saint Louis University Law Journal

Unique to legal literature, this article outlines the most basic and unsexy nature of fact finding at the lowest tribunal – what is decided by a lower tribunal after weighing the different stories and conflicting evidence, and after deciding which story to believe or which evidence has more value. While legal holdings and precedents are much more engaging to the legal mind, such legal “holdings” are heavily dependent upon the basic facts found for support. A legal rule without supporting facts is mere dicta, while a legal rule squarely derived from the facts forms a legal precedent.

This article identifies several ...

As The Revolving Door Turns: Government Lawyers Entering Or Returning To Private Practice And Conflicts Of Interest, Douglas R. Richmond

Saint Louis University Law Journal

Government lawyers regularly leave public service for private law practice—often through the same revolving door that launched their public careers. The law firms they join or to which they return welcome them because of the experience they gained, and the expertise they developed, while in the government. The challenge for former government lawyers and their law firms is recognizing and managing conflicts of interest that sometimes arise out of lawyers’ government service. To address the special conflict of interest concerns that emerge from the revolving door of government service, the ABA formulated Model Rule 1.11. With a single ...

Why Are Over 98% Of The Applications For Debt Discharge Under The Public Service Loan Forgiveness Program Being Denied?, Greg Scott Crespi

Saint Louis University Law Journal

On October 1, 2017, student loan borrowers who had taken out federal Direct Loans first became eligible for debt forgiveness under the Public Service Loan Forgiveness program after completing the required ten years of qualified public service employment. But as of March 31, 2020, over ninety-eight percent of the more than 188,000 applications for debt relief that had been filed and fully processed under this program have been denied. The later-adopted Temporary Expanded Public Service Loan Forgiveness program also has a strikingly high ninety-four percent plus denial rate for the over 29,000 applications for debt relief filed and ...

Reversing Progress: The Trafficking Of Cuban Baseball Players Continues After Cancellation Of Mlb-Fcb Agreement 103, Van Degregorio

Saint Louis University Law Journal

In December of 2018, Major League Baseball (“MLB”) signed an agreement with the Cuban Baseball Federation that would forever change how the MLB acquires its Cuban talent. The agreement established a formal process of immigration from Cuba to the United States for professional baseball players, replacing the decades-old practice of smuggling players into the United States with the help of dangerous human trafficking organizations. In April of 2019, during its decision to revert back to the traditional foreign policy strategy with Cuba, the Trump Administration scrapped the deal in its entirety, bringing the process back to square one. This Note ...

Leveling The Playing Field For Remote Sellers: Missouri’S Response In A Post-Wayfair World, Hannah Hope

Saint Louis University Law Journal

The case of South Dakota v. Wayfair opened the door for states to tax remote sellers who did not have a physical presence in the state. In its wake, states have scrambled to implement an economic nexus and start collecting revenue. The results widely vary, from states that have essentially implemented the exact criteria that was seemingly approved by the Court in Wayfair—such as sales and transaction thresholds—to states with no threshold at all. Then there is Missouri, which has so far failed to introduce an economic nexus, despite the millions in revenue it is missing out on ...

Death Is Certain But Probate Is Optional: How To Transfer Wealth And Dodge Creditors Using A Revocable Trust, Zackary C. Nehls

Saint Louis University Law Journal

This article explores the impact on creditors of two common methods of wealth transfer at death in the state of Missouri: the revocable inter vivos trust and the traditional probate estate administration process. In the former, the trustee will administer the property in the trust in accordance with its terms, thus circumventing the probate process for the assets placed in the trust. In the latter, a personal representative is appointed to manage the decedent’s final affairs through the probate courts in accordance with probate rules. The trustee and the personal representative play very similar roles but are held to ...

Is There A Cure For Vaccine Nationalism?, Ana Santos Rutschman

All Faculty Scholarship

“[V]accine nationalism . . . should serve as a reality check for the status of global health cooperation in the twenty-first century.”

From Mandates To Governance: Restructuring The Employment Relationship, Brett Mcdonnell, Matthew T. Bodie

All Faculty Scholarship

Employers are saddled with a dizzying array of responsibilities to their employees. Meant to advance a wide array of workplace policies, these demands have saddled employment with the burden of numerous social ends. However, that system has increasingly come under strain, as companies seek to shed employment relationships and workers lose important protections when terminated. In this Article, we propose that employers and employees should be given greater flexibility with a move from mandates to governance. Many of the employment protections required from employers stem from employees’ lack of organizational power. The imbalance is best addressed by providing workers with ...

The Law Of Employee Data: Privacy, Property, Governance, Matthew T. Bodie

All Faculty Scholarship

The availability of data related to the employment relationship has ballooned into an unruly mass of personal characteristics, performance metrics, biometric recordings, and creative output. The law governing this collection of information has been awkwardly split between privacy regulations and intellectual property rights, with employees generally losing on both ends. This Article rejects a binary approach that either carves out private spaces ineffectually or renders data into isolated pieces of ownership. Instead, the law should implement a hybrid system that provides workers with continuing input and control without blocking efforts at joint production. In addition, employers should have fiduciary responsibilities ...

Disparities In Health Care: The Pandemic’S Lessons For Health Lawyers, Danielle Pelfrey Duryea, Nicole Huberfeld, Ruqaiijah Yearby

All Faculty Scholarship

Population-level disparities in health and health care came to the forefront of U.S. public consciousness in 2020. As the racial, ethnic, and socioeconomic stratification of COVID-19 infection and death rates emerged with chilling clarity, the Black Lives Matter protests of the summer focused millions of Americans on the complex, structural nature of inequity and its long-lasting effects.

Access to quality health care is a “social determinant of health,” meaning that it is one of the “non-medical factors that influence health outcomes . . . the conditions in which people are born, grow, work, live, and age, and the wider set of forces ...

New York’S Proposed Mark-To-Market Tax Decouples From Federal Tax, Henry Ordower

All Faculty Scholarship

A proposal decouples NY from federal tax computations to tax billionaires on unrealized appreciation. If enacted, the proposal generates basis discontinuities across borders but enhances state revenue and may prove attractive to many states. The article reviews how states seek to enhance revenues and considers issues of cross-border taxation and the fundamental right to travel.