Replacing Smith with a “Graduated Scale” Approach to the Free Exercise Clause

Justin Burnworth

54 U. Tol. L. Rev.  (Forthcoming 2022)

In Smith, Justice Scalia’s majority opinion infamously rejected the strict scrutiny approach for Free Exercise claims and instead established the more relaxed neutral law of general applicability test. This article addresses Justice Barrett’s concurrence in Fulton, in which she asked what test should replace the neutral-law-of-general-applicability test if Smith is overturned.

The Marketplace of Ideas and the Problem of Networked Truths

Jared Schroeder

54 U. Tol. L. Rev. (Forthcoming 2022)

 How truth is constructed has shifted as people increasingly make conclusions about the world around them based on realities formed from algorithmically and bot-influenced information environments and ideologically chosen group identifications. The dominant rationale for expansive free expression protections, however, is founded upon a much different understanding of truth. This article examines the factors that influence the shift in truth in the networked era, particularly in regard to social capital, identity, and how online spaces encourage a different type of expression.

Jabbing Businesses: Governmental COVID-19 Vaccination and Anti-Vaccination Mandates

Brendan Williams

54 U. Tol. L. Rev. (Forthcoming 2022)

As the first COVID-19 vaccine rolled out, polling suggested only 15 percent of of Americans would "definitely" refuse to get vaccinated. Yet that sentiment changed as vaccinations became politicized in the U.S., as part of a continuum of politicization surrounding COVID-19, with Florida in the vanguard.

Unconscionable: Fighters, Contracts, and a Hardcore Cash-Money Sport

Garner Dusa

54 U. Tol. L. Rev.  (Forthcoming 2022)

Many believe there has never been a better time to be a Mixed Martial Arts fan, but the vast majority of fighters in the sport face terms and contracts between promotions and fighters that rise to a level of unconscionability. For individual fighters looking to invalidate their agreements in lieu of better opportunities, the malleable doctrine of unconscionability in the novel and growing field of combat sports should be seen as a promising option for individual lawsuits against the UFC.

Drink Before You Murder, Not Before You Consent to A Search: The Complexities of Voluntary Consent to Search While Intoxicated in Ohio

Madison A. Knapp

54 U. Tol. L. Rev. (Forthcoming 2022)

In most jurisdictions, including Ohio, it is widely accepted that in the totality of the circumstances analysis, the intoxication level of an individual providing consent is a subjective factor. Although Ohio permits voluntary intoxication to rebut the mens rea of certain crimes,  Ohio has not addressed the problems that intoxication poses on the voluntariness of consents to search. Ohio legislatures and courts have previously analyzed how intoxication deters sound judgment, indicating this analysis could be conducted again in the context of consent searches.

Not One and the Same: Why Courts Should Limit the Role of the Collective Knowledge Doctrine in Immigration Enforcement

Rachel M. Hovenden

54 U. Tol. L. Rev.  (Forthcoming 2022)

The Collective Knowledge Doctrine allows law enforcement officers to satisfy probable cause requirements collectively, so that one officer with reasonable suspicion of criminal activity may direct another officer to make the arrest. While controversial among scholars,  this doctrine is well-established. Alarmingly, however, courts have recently applied the doctrine to impute probable cause from federal immigration officers to state and local law enforcement officers. This expansion causes real concern about the role of LEOs in enforcing civil immigration violations, and the future of probable cause requirements under the Collective Knowledge Doctrine.

Whether Equivalency Scholarship College Athletes Could be Employees Under the NLRA

Nicholas P. Ensinger

54 U. Tol. L. Rev.  (Forthcoming 2022)

Many people mistakenly think classifying college athletes as employees under the National Labor Relations Act (NLRA) would make athletes entitled to a salary, but this is not necessarily the case. Employee classification of college athletes would provide them the ability to collectively bargain with their schools and protect them from unfair labor practices. Put differently, athletes and universities could bargain for payment, but it would not be automatic. College athletes would also have a voice to negotiate for things important to them other than salaries, like improving player safety. Further, athletes would be protected from retaliation, such as loss of scholarship, for exercising their rights as employees for seeking improvements to their safety, for example. While the issue of whether Division I headcount scholarship college athletes should be classified as “employees” has been a controversial topic, recent legal challenges against the NCAA suggest the probability of this monumental change is higher than ever.

Are Semiautomatic Rifles “Dangerous and Unusual” Weapons?

Dennis P. Chapman
54 U. Tol. L. Rev. (Forthcoming 2023)

Efforts by some courts to conflate the semiautomatic AR-15 rifle with machineguns intended solely for military use are entirely erroneous. The use of semiautomatic firearms is deeply rooted in the history and tradition of American gun ownership. While M16s and other machineguns might not be commonly found in private hands, semiautomatic rifles like the AR-15 are widely owned and used by private citizens for lawful purposes in the millions. As such, they are in no way among the “dangerous and unusual” weapons historically outside the ambit of the traditional right to keep and bear arms and are well within the scope of the Second Amendment’s protection.

Tort Appendectomy: A Historical Approach to Removing the Vestigial Relationship Requirement for Duty

Bryce Talbot
54 U. Tol. L. Rev. (Forthcoming 2023)

The duty element of a negligence action under many states’ case law has seen a variety of interpretations and constructions. Perhaps the most common, and puzzling, of these is that a duty must arise based on some relationship between the plaintiff and defendant. This article employs a novel historical analysis to argue that the reliance on relationships is a vestige of the old-English writ system that should not be retained. Further analysis confirms that the duty concept in the United States started as a general duty from all to all. But then activists, scholars, and judges began implementing a more limited, narrow duty (more similar to proximate cause) for policy.

Extraordinary and Compelling: Sentencing Changes, Compassionate Release, and Judicial Discretion

Claire Griffin
54 U. Tol. L. Rev. (Forthcoming 2023)

The First Step Act of 2018 amended the mandatory minimums for certain offenses regarding controlled substances and removed a stacking provision under which a defendant charged with using a gun faces a concurrently charged offense. This change significantly reduced the length of certain mandatory-minimum sentences, but Congress missed an opportunity to enact additional meaningful criminal justice reform by not retroactively applying all the Act’s changes. One possible solution to this shortcoming is to qualify non-retroactive sentencing changes made by the Act as an extraordinary and compelling reason to grant defendant-filed motions for sentence reduction under the compassionate release statute.

States are the Answer to Requests for a Specific ESG Disclosure Law, Not the SEC… Yet

Gabrielle B. Guliana
54 U. Tol. L. Rev. (Forthcoming 2023)

Investors deciding who they'll back in the market are increasingly considering corporations’ environmental, social and governance (ESG) records. But a lack of uniform reporting and data that tracks ESG performance makes ESG investing difficult. This note explains why the states are best positioned to enact new ESG disclosure rules, supported by federal corporate law standards and core principles of the Constitution. The note also outlines how such state laws can serve as an important source of experimentation in this new field of lawmaking.

Childcare: The Privatized Pandemic a Call for a Federal Childcare Safety Net

Rebecca Marcus-Nicholls
54 U. Tol. L. Rev. (Forthcoming 2023)

There is a childcare crisis in America, and its working women who bear the burden of propping up a broken system. Current federal family policy and law have failed working mothers, but the pivotal low point of the COVID-19 pandemic and the resulting childcare crisis should be a call to arms for profound societal change that remedies this gendered problem. By declaring childcare a public good and treating it accordingly, America can create a national childcare safety net, while also crafting more autonomy for women, and a stronger, more profitable economy.

United States Farm Policy Reform in Supporting Dietary Diversity and Combating Monocropping

Alyson Waite
54 U. Tol. L. Rev. (Forthcoming 2023)

Past iterations of the United States Farm Bill have fed America’s obesity epidemic, thanks largely to crop and dairy subsidies that promote poor public health outcomes. With the current farm bill set to expire at the conclusion of the government’s fiscal year in 2023. The 2023 bill offers an opportunity for the United States to shift agricultural policy in a direction that enhances public health while benefiting farmers through effective government subsidies.