Morally Regulatable Lives: Corporate Sovereignty, the Rise of Burwell v. Hobby Lobby, and the Ironic Demise of The Walt Disney Company’s Reedy Creek Improvement District

2023, Past Issues, Print, Volume 55 (2023) Issue 2 (Summer)
By Ashton P. Jones-Doherty. Burwell v. Hobby Lobby is a misunderstood case. Since the decision in 2014, scholars have split into two camps, debating Hobby Lobby’s religious liberty concerns. One camp argues Hobby Lobby unconstitutionally allows corporations the right to enact religiously motivated policies where the corporate purpose is purely secular, whereas the other camp argues Hobby Lobby simply affirms an ownership’s right to control the corporation pursuant to their religious interests without government intervention. Both camps miss Hobby Lobby’s underlying reasoning, debating the religious liberty interests while ignoring the case’s constitutional affirmation of corporate sovereignty. Full Article.
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Uncharted Violence: Reclaiming Structural Causes in the Power and Control Wheel

2023, Past Issues, Print, Volume 55 (2023) Issue 2 (Summer)
By Tamara Kuennen. The “Power and Control Wheel” (“the Wheel”) is an iconic image in the anti-gender violence field. On a single vivid page, it captures multiple layers of intimate partner abuse. In the Wheel’s hub are the words “power and control,” the fundamental motivation of an abusive partner. Eight spokes emanate from the center, each representing a tactic of abuse designed to accomplish that goal, such as “coercion and threats” and “intimidation.” The rim of the wheel identifies “physical” and “sexual” violence as the actions holding together and fortifying the tactics of an abusive partner’s control.The Wheel sprung from activists’ focus group interviews with two hundred “battered women,” conducted in the early 1980s.4 First printed in a modest spiral bound manual with cover art drawn by a volunteer, the Wheel…
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Trademark Tarnishmyths

2023, Past Issues, Print, Volume 55 (2023) Issue 2 (Summer)
By Jake Linford, Justin Sevier & Allyson Willis. Trademark law protects famous marks from dilution by tarnishment, defined by statute as use likely to “harm the reputation of the famous mark.” Tarnishing uses are typically those that connect a mark with disreputable goods or topics, like sex or drugs. Mark owners worry that consumers will not purchase products connected with sexually explicit or drug-related materials, and courts often presume the same. If those associations likely cause consumers to withhold custom or dissipate goodwill consumers have invested in the mark, anti-tarnishment protection might be justified. But if that harm is more mythic than real, the law penalizing tarnishing use of trademarks may be ripe for judicial skepticism or congressional reevaluation.Indeed, constitutional invalidation might even be on the table. In a series of…
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Speech First, Equality Last

2023, Past Issues, Print, Volume 55 (2023) Issue 2 (Summer)
By Brian Soucek.  Universities have been put in an impossible situation. They are liable under nondiscrimination laws if they allow hostile speech to interfere with someone’s education, but they are increasingly said to be liable under the Free Speech Clause if they do anything to stop speech before that point. Put simply, universities are liable for acting until the moment when they are liable for not having acted. This conundrum—what this Article calls the Double Liability Dilemma— is the result of remarkably successful litigation brought in courts across the country by a new, conservative free-speech organization called Speech First. Three courts of appeals, with a fourth perhaps soon to come, have recently enjoined universities from enforcing their harassment policies. These schools now find themselves unable to act to counteract hostile…
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Dietary Suspects: Extracting the Truth from Dietary Supplements with a Standardized Federal Testing Seal

2023, Past Issues, Print, Volume 55 (2023) Issue 2 (Summer)
By Nicholas A. Traver. Are you fatigued, lethargic, or forgetful? Do you find it difficult to lose weight? Would you like to reduce your odds of cancer or even reverse the signs of aging? Considering the variety of common ailments many face every day, how empowered would you feel if you could address these, all on your own, with products widely available off the shelf? Would you take a magic pill, powder, or liquid that intimated quick relief? “Wellness culture” is thriving, and chances are more than half of the readers of this Comment take at least one dietary supplement regularly. If this includes you, consider the following question: Do you really know what’s in your dietary supplement? Full Article.
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Prime & Punishment: Evaluating Amazon’s Liability for Defective Products from A-to-Z in AZ

2023, Past Issues, Print, Volume 55 (2023) Issue 1 (Spring)
By Spencer Shockness. From air fryers and Apple watches to Ziploc bags and zero-gravity chairs, consumers can purchase everything on Amazon.com—as famously indicated by Amazon’s A-to-Z logo. The “online-everything store” accounts for roughly 37–49% of all online commerce in the United States. This suggests an immense number of consumers interact with Amazon.com for various purchasing needs on a daily basis. One unique aspect of Amazon’s operations is that it only manufactures a minority of the products sold on its website. Products manufactured by third parties make up 58% of sales on Amazon.com. So if consumers purchase products from Amazon.com that a third party manufactured, who is responsible if the product is defective? The obvious answer is the manufacturer because it placed the product in the marketplace. However, an individual consumer may…
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Indian Boarding School Deaths and the Federal Tort Claims Act: A Route to a Remedy

2023, Past Issues, Print, Volume 55 (2023) Issue 1 (Spring)
By Claire Newfeld. Since their founding, the United States, Canadian, and other governments have purported to act as the “protectors” of Indigenous peoples. While modern federal Indian policy favors self-determination and the preservation of Native culture and land, the vast majority of pre-1960s “protective” policies interpreted the Native way of life as inferior and savage, aiming to forcibly assimilate Native communities into white American society. In a cruel example of this policy, these governments implemented a comprehensive “re-education” effort throughout the nineteenth and twentieth centuries that forcibly removed Indigenous children from their tribal homes and placed them in boarding schools to become “Americanized." In the summer of 2021, North America was forced to reckon with the cruelty and inhumanity of these efforts when at least 1,308 suspected graves containing Indigenous children were…
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Toxic Sexuality: How Disgust at the Thought of Gay Male Sexuality Threatens the Parental Rights of Gay Male Parents

2023, Past Issues, Print, Volume 55 (2023) Issue 1 (Spring)
By Dr. Mark Leinauer. Psychologists have long known that gay male sexuality elicits feelings of disgust in a sizeable portion of the general population, and that individuals highly sensitive to disgust tend to evaluate gay males more harshly than individuals lowly sensitive to disgust. But while prior experimental studies have shown that this bias impacts support for LGBTQ+ related policies in the political arena, its impact on judicial decision making has not been fully explored. I focus on the judicial evaluation of gay male fathers during custody disputes, and I conduct a randomized controlled experiment, an observational case law analysis and semi-structured interviews to examine the issue. I conclude that disgust bias significantly threatens the parental rights of gay male fathers during custody adjudications. Specifically, I argue that judges highly sensitivity…
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Guns, Mass Incarceration, and Bipartisan Reform: Beyond Vicious Circle and Social Polarization

2023, Past Issues, Print, Volume 55 (2023) Issue 1 (Spring)
By Mugambi Jouet. Gun violence in modern America persists in the face of irreconcilable views on gun control and the right to bear arms. Yet one area of agreement between Democrats and Republicans has received insufficient attention: punitiveness as a means of gun control. The United States has gravitated toward a peculiar social model combining extremely loose regulations on guns and extremely harsh penalties on gun crime. If someone possesses a gun illegally or carries one when committing another crime, such as burglary or drug dealing, draconian mandatory minimums can apply. These circumstances exemplify root causes of mass incarceration: overreliance on prisons in reaction to social problems and unforgiving punishments for those labeled as “violent” criminals. Contrary to widespread misconceptions, mass incarceration does not primarily stem from locking up petty, nonviolent…
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Does Expanding Tribal Jurisdiction Improve Tribal Economies: Lessons from Arizona

2023, Past Issues, Print, Volume 55 (2023) Issue 1 (Spring)
By Adam Crepelle & Thomas Stratmann. In 2013, Congress reaffirmed tribes’ inherent authority to prosecute all persons who commit dating violence, domestic violence, or violate a protective order against Indian women on tribal land in the Violence Against Women Reauthorization Act (VAWA). Congress required tribes to comply with strict procedural safeguards to implement VAWA. Although VAWA was not designed to stimulate tribal economies, its due process provisions may be considered judicial improvements. Stronger judiciaries have been consistently linked to greater economic performance. Accordingly, we test whether implementing VAWA improved tribal economies. This analysis compares the income growth of VAWA-implementing tribes in Arizona to neighboring non-implementing tribes. Our findings show that incomes grew faster for VAWA-implementing tribes than for non-implementing tribes in Arizona. Full Article.
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