#MeToo and the Courts: An Analysis of the Movement's Effect on the Workplace Sexual Harassment Law

Natalie Pedersen 

Christine Gargiulo

53 U. Tol. L. Rev. _ (Forthcoming 2021)

In late 2017, the #MeToo Movement transformed the way we talk about sexual harassment and assault in the United States.  In its wake, state legislatures have enacted laws to better protect victims, including those who have suffered workplace sexual harassment.  While scholars have examined these legislative changes, this is the first article to look at the effect of the Movement on the judiciary.  Specifically, we find that while a few courts have referenced the Movement by name in their decisions, only one, the Third Circuit in Minarsky v. Susquehanna City, actually acknowledged the fact that the realities of what was learned through the Movement should affect how judges approach sexual harassment cases.  This Article examines the #MeToo Movement, legislative and judicial changes flowing from it, and the path forward from here.

Certified Questions of State Law: An Empirical Examination of Use in Three U.S. Courts of Appeal

Jason A. Cantone

Carly Griffin

53 U. Tol. L. Rev. _ (Forthcoming 2021)

Federal courts routinely need to apply state law, but this task becomes complicated when no definitive state law exists. In these instances, federal judges have a few options, including making an Erie guess, or certifying the question of state law to the highest state court. During the U.S. Supreme Court’s October 2020 term, two opinions endorsed the certification of questions of state law procedure. However, despite recent interest by the U.S. Supreme Court and the U.S. Judicial Conference Committee on Federal-State Jurisdiction, little empirical research has examined the perceived benefits and burdens of the procedure. This Article provides new empirical data to help fill that gap.
Using a sample of 220 certified-question events across the U.S. Courts of Appeals for the Ninth, Third, and Sixth Circuits from 2010 to 2018, we examine how certified questions originate, in what types of cases, how often U.S. courts of appeal certify the questions of state law, and whether the corresponding state supreme courts grant or deny the question. Further, to address the perceived time burden associated with certification, we examine how long each part of the process takes in the appellate court, from filing to certification to termination. We found significant variation between the three U.S. courts of appeals in certification rates and timing. While we encourage future studies regarding certification of state law questions, our data can be readily used to inform courts and academic debates regarding the benefits and burdens of the procedure.

Don't Forget About Your Sisters: The Women's Equality Implications of the Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania Decision

Molly Galvin 

53 U. Tol. L. Rev. _ (Forthcoming 2022)

In 2020, the Supreme Court of the United States heard and decided the Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania case. Through this decision, employers who previously were not able to purposefully exclude women’s health coverage, including contraceptive services, through their group health insurance are now able to invoke “religious” or “moral” exemptions in order to do so. Exemptions of this kind were originally intended to provide churches and similar auxiliaries an option to not include contraceptive services in their health insurance plans due to religious objections. Other entities, including for-profit businesses, still had an option to not pay for contraceptive services coverage through a self-certification process, but their women employees continued to have an option for those costs to be covered under their insurance plan. The recent decision allows entities to invoke a blanket exemption and forego their women employees any option besides paying out of pocket for their contraceptive service needs. This article examines the history of the Affordable Care Act and the Women’s Health Amendment, case law leading up to the Little Sisters of the Poor case, and the women’s equality implications that flow from the decision.

Putting Police in the Paddy Wagon: An Analysis of the Difficulties of Prosecuting Police and Proposed Solutions

Aaron D. Hill

53 U. Tol. L. Rev. _ (Forthcoming 2022)

The successful prosecution of Derek Chauvin was a miracle beyond all miracles. Currently, the legal system has a systematic way of protecting police officers in instances of police brutality and police misconduct. But why is that? What is it about our legal system and legal profession that seeks to insulate the police from accountability? This note seeks to identify the constant legal barriers that exist preventing just prosecution of the police. It then discusses the devastating impacts to America if legal professionals do not seek accountability from our law enforcement counterparts. Finally, it posits possible solutions to the problem.

The End of an Error: How Ohio Abolished JLWOP Through Senate Bill 256 and How the Legislation Compares to Other Jurisdictions

Tremayne Hogue 

53 U. Tol. L. Rev. _ (Forthcoming 2021).

In a landmark decision in 2012, the Supreme Court, in Miller v. Alabama, held that mandatory sentencing schemes that subject juveniles to life without parole violated the Eight Amendment of the United States Constitution. Since that decision, states have tried to decide—either legislatively or judicially—just how far the Supreme Court’s decision in Miller was to be extended. Ohio, which previously determined that juveniles could be sentenced to life without parole, passed Senate Bill 256 in late 2020 which, among other things, completely barred juvenile life without parole (JLWOP) sentences. This Note looks at how Ohio previously handled cases involving JLWOP sentences, analyzes the alterations made by Senate Bill 256, and compares Ohio’s newly passed legislation with other states who have taken similar approaches in eliminating JLWOP sentences.

What Do You Call Female Members of Boy Scout Troops?

Wayne A. Kalkwarf

53 U. Tol. L. Rev. _ (Forthcoming 2022)

This is your Project description. Whether your work is based on text, images, videos or a different medium, providing a brief summary will help visitors understand the context and background. Then use the media section to showcase your project!

Let's Talk About Voluntary Sex Work, Baby: How the United States' Flagrant Disregard for Sex Workers' Lives Violates International Legal Norms

Michelle A. Kovach

53 U. Tol. L. Rev. _ (Forthcoming 2021)

The United States is a globally recognized powerhouse. Its implementation–or disregard for–various international treaties of which it is a party do not align with its duties to keep those who voluntarily enter the sex work trade free from discrimination, and actively create and perpetuate dangerous working conditions. As a massive contributor to the United Nations, both financially and as a lodestar for many nations, the United States must be held accountable for its neglect of its international legal duties. This article focuses on various treaties the United States is involved in in varying capacities, how it has breached its international legal duties, how it compares to other nations regarding treatment of sex workers, and how it must implement international law in domestic courts.

The Dilemma of Private Censorship

Raman Maroz 

53 U. Tol. L. Rev. _ (Forthcoming 2022)

In addressing the ultimate issue of whether the constitutional guarantee of freedom of speech may in fact require the government to intervene in the private realm in order to curb non-governmental censorship, this article takes a different approach. First, this article will outline how the constitutional right of freedom of expression is understood in today's democracies. Second, this article discusses three important examples of extensive private censorship. Third, this article proceeds by looking into the reasons as to why freedom of speech is protected by constitutions, arguing that there exists a classic justification for this. Fourth, this article demonstrates that this classic justification may in effect necessitate governmental intervention in the private sphere to protect speech. This last point brings up the dilemma of private censorship. On the one hand, censorship practices of private actors may be so harmful that governmental interference would seem justified. On the other hand, it has historically been the government that played the role of major oppressor of freedom of expression. Hence one should strongly resist any temptation to entrust the government with more powers in this field. Finally, this article will suggest that one solution to this dilemma could be to draw upon the experience and research of economic theory, in particular the works of Friedrich Hayek. By applying Hayek’s views on regulation of monopolies and competition to the world of freedom of expression, one can infer that governmental intervention should be avoided to the maximum possible degree. It is only when a particular monopoly substantially manipulates the market of opinions and ideas and effectively eliminates competition between them that the government may be required to step in. Certain practices undertaken by Facebook, Twitter, and YouTube, specifically those relating to political speech, can arguably lead to such undermining of competition.

Heteronormativity: The Bias Underlying Marriage, Gender Roles,
Sex Discrimination, and Custody Determinations

Maria McCabe

53 U. Tol. L. Rev. _ (Forthcoming 2021)

In almost every area of jurisprudence one will find the laws and traditions are based on heteronormative norms and biases. These biases are most readily apparent in the realm of family law. As society moved towards having more "non-traditional" families, our perceptions and approaches to family matters must adapt to the changing family landscape. To effect these changes, we must first acknowledge and understand biases as they exist, as well as attempts to curtail them.

Reviving Supplemental Environmental Projects

Jorden Messmer

53 U. Tol. L. Rev. _ (Forthcoming 2022)

In early 2017, the Trump administration announced that walking back the powers of the federal administrative agencies was a primary focus of the President’s agenda. The publicly stated goal was to restore Congress’s Constitutionally delegated authority. As a result of this overarching goal to preserve the separation of powers, an environmental settlement tool known as Supplemental Environmental Projects (SEPs) was entirely banned on March 12, 2020. SEPs were previously used in environmental settlement negotiations to ensure that the communities directly harmed by environmental damage received the benefits of the penalties assessed against polluters. Within days of coming into the White House, President Biden issued an executive order that will act as the foundation to restoring SEPs in the near future. This Note examines the merits of both the Trump and Biden administrations’ interpretations of the applicable statutes, and further advocates for Congressional action to ensure the future of SEPs.

Human Trafficking and Online Platform Liability

Maddison M. Moser 

53 U. Tol. L. Rev. _ (Forthcoming 2021)

Human trafficking is prevalent now more than ever due to technological advances. The law regarding trafficking is not evolving quickly enough to counteract the crime. Creating effective compliance programs for internet platforms can mitigate trafficking on websites in the most cost-effective and least constitutionally restrictive means, without offering complete immunity for internet platforms like the current legislation allows. This Note explores possible alternatives to establishing liability for internet platforms that contribute to human trafficking on the internet by creating a compliance program-based solution that mirrors the Chapter 8 Federal Sentencing Guidelines.

The NLRB Champions "Civility" in the Workplace in General Motors: Altruism or Duplicity? - The Union Perspective

Marcus Reed 

53 U. Tol. L. Rev. _ (Forthcoming 2021)

The National Labor Relations Act (NLRA) was passed with the hope of establishing industrial peace by giving employees the right to collectively bargain with their employers and engage in concerted activities for the mutual aid and protection of their fellow employees. But labor disputes to this day remain contentious and personal in nature.  Prior to General Motors LLC (2020), the National Labor Relations Board (NLRB) read Section 7 of the NLRA to provide employees significant leeway for the degree and nature of their advocacy during Section 7 protected activity, so long as the language or conduct was not violent or threatening, did not cause major disruptions in the workplace, did not interfere in the employer’s ability to maintain order, or if the conduct was not so severe as to render an employee unfit for duty.  This leeway is colloquially referred to as the “equality principal” – setting workers on an equal bargaining ground with their employers.

In recent years, however, there has been calls from pro-management advocates to reform the NLRB’s setting-specific tests used to determine when an employee loses Section 7 protection for offensive outbursts during otherwise protected concerted activity in the contexts of the picket line, in the workplace, and outside of work. First, these advocates argued that the lenient standards used by the NLRB failed to take into consideration employers’ prerogative to maintain discipline and a civility the workplace. They also argued that the NLRB’s standards produced inconsistent and inequitable results. One of their strongest arguments is that many of the NLRB’s decisions under these standards requiring employers to reinstate employees for using offensive and often racist language during Section 7 protected activity created conflicts between the NLRA and equal employment opportunity laws such as Title VII of the Civil Rights Act. In General Motors, the Trump Board took these criticisms as an opportunity to readdress what they believed to be the proper balance between an employee’s right to protection under Section 7 and an employer’s right to maintain discipline by inviting amicus briefs on the issue. Ultimately, the Trump NLRB heeded the calls of employers and overruled all setting-specific tests that provided leeway to employees in favor of the Wright Line standard, which provides greater deference to the employer.

This note examines the implications of the General Motors holding and address the Trump NLRB’s underlying motives by illustrating the chilling effects the ruling has on an employee’s Section 7 rights as well as union effectiveness overall. More specifically, this note articulates the union perspective on why the Wright Line standard is improper for evaluating whether an employer has the authority to discipline an employee for conduct that is part and parcel of an employee’s protected activity. It also addresses the Trump NLRB’s rationales for abolishing the setting-specific tests in favor of the Wright Line standard and offers counter arguments and criticisms from the union perspective. This note concludes that the Trump NLRB’s adoption of the Wright Line standard in the context of employees-protected activity weighs too heavily employers’ concerns about civility and discrimination and significantly understates employees’ rights established under the NLRA.

A Statutory Analysis of Racially Restrictive Covenants

Lauren A. Schaffer

53 U. Tol. L. Rev. _ (Forthcoming 2021)

Restrictive covenants prohibit or limit the use of a property in a specific way, potentially affecting future owners. Restrictive covenants that prohibit the sale of a property based on race are no longer enforceable, or legal to create. However, the presence of racially restrictive covenants in property records continue to have detrimental effects on current and potential purchasers. Further, they undermine the progress of fair housing laws. There has been little successful statutory reform to allow individual homeowners to amend their own property records to do away with these unenforceable restrictive covenants. This article examines what pieces of successful statutory reform exist, and what other additions are necessary to produce effective and successful reform.

Maximum Security, Minimal Appreciation: The Unique and Necessary Mission that Ohio's Maximum-Security Prisons Accomplish and How to Improve Departmental Success

Jesse E. Scott 

53 U. Tol. L. Rev. _ (Forthcoming 2021)

The Ohio Department of Rehabilitation and Corrections (“ODRC”) has been charged by the Ohio legislature to rehabilitate the state’s offenders and reduce recidivism within its communities. In 2020, ODRC maintained an operating budget of over $1,484,000,000 to oversee the incapacitation of over 45,800 inmates. To improve departmental success and the reduction of recidivism, ODRC has implemented a Tier System designed to separate inmates at various institutions throughout the state based on several factors, including behavior, gang affiliation, and security status.

As of July 2020, ODRC maintains custody of 2,464 maximum-security inmates. ODRC’s Tier System, as explained herein, is designed to promote good behavior and adherence to departmental rules. ODRC intends for its maximum-security facilities to be the "end of the line;" meaning, once an inmate is placed within, the behavior of the inmate is expected to improve, which will in turn allow reclassification into a lower security facility. Once within the lower security facility, the inmate has access to greater privileges and educational or vocational programming, leading to better re-integration into the community after incarceration.

However, this Note takes the position that ODRC has unnecessarily made its maximum-security facilities too comfortable to the detriment of institutional security, staff, inmate safety, the rehabilitative function of ODRC, and the Tier System. In assessing penological theory regarding maximum-security institutions and the constitutional bounds of conditions within prisons and inmate privileges set by the Supreme Court, ODRC can vastly restrict the plethora of privileges and creature comforts currently afforded to its maximum-security inmates. This Note reaches the conclusion that if ODRC were to reduce these privileges, maximum-security inmates would have a greater incentive to earn reclassification to a lower-level facility, while also serving as a deterrent to other inmates to avoid behavior that results in classification into a maximum-security facility. This would ultimately lead Ohio’s worst offenders receiving the skills and treatment required for successful reintegration into the public communities.

Common Interests Communities and a New Approach to Restriction on Leases as Amendments to the Original Declaration

Gabriela Santos Toscano

53 U. Tol. L. Rev. _ (Forthcoming 2022)

For far too long courts have been upholding leasing restriction amendments with too much ease and without considering the consequences of these provisions. Treating leasing restriction amendments to a declaration as presumptively valid or using a loose reasonableness standard is not enough. To remediate concerns about restraints on alienation, lack of notice and economic impact that is caused by these amendments, this note suggests that courts should be less deferential to these amendments and should apply rational basis review with a bite when approaching these issues, a standard created and applied in public law. Further, this note suggests developers should add a clause similar to a takings clause in their declarations, and if one is not included, the courts should impose one as a matter of law when dealing with amendments that impose some form of leasing restrictions, or the legislature should adopt such approach.

Jumping Bail: The Unconstitutionality of Money Bail and Surety Bonds

Maria C. Zirbel

53 U. Tol. L. Rev. _ (Forthcoming 2022)

Our criminal justice system is supposed to provide justice regardless of race, religion, income, and a host of other irrelevant factors. It fails to live up to this ideal. At the beginning of the adjudication process, under the current state of our bail system, wealthy and indigent arrestees are treated differently. It is not only ineffective and unjust, but should be found unconstitutional, based on violations of the Fifth, Sixth, Eighth, and Fourteenth Amendments. Unfortunately, reform efforts have not gone far enough, and our broken system has led to an increase in criminalization, worse outcomes for indigent defendants, and increased discrimination. Our system now uses money bail to have more people detained than ever before. Eliminating money bail will make room for creative solutions that will allow the vast majority of those accused to be released on non-monetary conditions and maintain their personal and community relationships.