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 mos jurisdictions, including Ohio, it is widely accepted that in the totality of the circumstances analysis, the intoxication level of the 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/or 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 nowledge 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.