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Volume 63, Issue 6
NOTE: The Exception that Doesn’t Prove the Rule: Why Congress Should Narrow ENDA’s Religious Exemption to Protect the Rights of LGBT Employees

 By Julie Dabrowski | 63 Am. U. L. Rev. 1957 (2014)

 The current state of protections for lesbian, gay, bisexual, and transgender (LGBT) employees in the workplace is far from adequate.  Anywhere from 15–40% of gay and lesbian employees and nearly 90% of transgender employees have experienced discrimination or harassment at some point in their careers.  Yet victims of discrimination based on sexual orientation or gender identity must navigate a patchwork of federal, state, and local laws and regulations that often provide insufficient or no protection for employees.

COMMENT: The Stormy Seas of Situs: Reevaluating the Situs Requirement of the Longshore and Harbor Workers’ Compensation Act

By Gillian S. Davies | 63 Am. U. L. Rev. 1901 (2014)

The Longshore and Harbor Worker’s Compensation Act (LHWCA), first passed in 1927 and significantly amended in 1972, provides compensation for employees injured in the course of certain maritime employment.  Initially, the Act’s strict location-based requirement allowed only those injured on “navigable waters” to receive compensation, but the 1972 amendments extended coverage to workers who were injured on certain “adjoining areas,” provoking much controversy over which workers could receive coverage and where they must be working.  Today, claimants must satisfy both a status (employment) requirement and a situs (geographical) requirement to receive coverage.  Essentially, the question becomes how far to extend coverage, and the courts have split, most favoring one extreme or the other.

COMMENT: College Athletics Internships: The Case for Academic Credit in College Athletics

By M. Tyler Brown | 63 Am. U. L. Rev. 1855 (2014)

College athletes are beginning to speak out against the current college sport model that treats college athletes as unpaid amateurs, while the National Collegiate Athletic Association (NCAA) continues to stand behind that model. The problem, not uncommonly, boils down to money.  High-profile college teams and athletes generate substantial revenue for their respective universities.  Some college athletes dedicate as much time to their sport as the average American worker dedicates to his or her job.  However, college athletes often do not receive the benefit of their bargain with universities:  a college education. 

Pragmatism and Postcolonialism: Protecting Non-Owners in Property Law

By Rashmi Dyal-Chand | 63 Am. U. L. Rev. 1683 (2014)

Property law has a particular problem with non-owners.  Although property law clearly identifies the rights of property “owners,” the rights of “non-owners” are vague.  This problem is significant because modern property law is often called upon to balance the rights and needs of owners and non-owners.  Property law cannot adequately perform this function without clearly establishing both sets of rights.  The New Jersey Supreme Court case State v. Shack exemplifies this problem because it purports to be a case about protecting non-owners.  This Article examines both the case and the texts upon which the court relied to argue that the New Jersey Supreme Court could not adequately protect the non-owners in the case because the court could not understand their rights.  Instead, in its effort to evince a set of rights powerful enough to overcome the property owner’s rights, the court eliminated the voices of the migrant workers it claimed to protect.

Substantive Habeas

By Kimberly A. Thomas | 63 Am. U. L. Rev. 1749 (2014)

Substantive Habeas identifies the U.S. Supreme Court’s recent shift in its habeas jurisprudence from procedure to the substance of habeas review and explores the implications of this change.

For decades, the U.S. Supreme Court has attempted to control the flood of habeas corpus petitions by imposing procedural requirements on prisoners seeking to challenge constitutional error in their cases.  These restrictive procedural rules have remained at the center of habeas decision making until recently.

The New Habeas Corpus in Death Penalty Cases

By Larry Yackle | 63 Am. U. L. Rev. 1791 (2014)

This article offers a systematic examination of Chapter 154, United States Code, which establishes new rules and procedures to govern cases in which state prisoners under sentence of death file federal habeas corpus petitions challenging their convictions or sentences.  Chapter 154 was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996.  Yet its provisions were made applicable only in capital cases arising from states that adopted qualifying schemes for providing indigent death row prisoners with counsel in state postconviction proceedings.  No state’s system for supplying lawyers in state court won approval and, in consequence, Chapter 154 has been on hold for nearly twenty years.  The Department of Justice recently revised the standards that state legal services programs must satisfy.