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Volume 63, Issue 3
The Affordable Care Act, Remedy, and Litigation Reform

By Brendan S. Maher | 63 Am. U. L. Rev. 649 (2014)

The Patient Protection and Affordable Care Act of 2010 (ACA) rewrote the law of private health insurance. How the ACA rewrote the law of civil remedies, however, is a question largely unexamined by scholars. Courts everywhere, including the U.S. Supreme Court, will soon confront this important issue. 

This Article offers a foundational treatment of the ACA on remedy. It predicts a series of flashpoints over which litigation reform battles will be fought. It identifies several themes that will animate those conflicts and trigger others. It explains how judicial construction of the statute’s functional predecessor, the Employee Retirement Income Security Act of 1974 (ERISA), converted a protective statute into a uniquely effective piece of federal litigation reform. Ultimately, it considers whether the ACA—which incorporates, modifies, and rejects ERISA in several notable ways—will experience a similar fate.

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Perceived Homosexuals: Looking Gay Enough for Title VII

By Brian Soucek | 63 Am. U. L. Rev. 715 (2014)

Under the conventional view of Title VII, gay and lesbian workers can bring discrimination claims based on gender stereotyping but not sexual orientation. This Article analyzes 117 court cases on gender stereotyping in the workplace in order to show that the conventional view is wrong. In cases brought by “perceived homosexuals,” courts distinguish not between gender stereotyping and sexual orientation claims, but between two ways that violations of gender norms can be perceived: either as something literally seen or as something cognitively understood. This Article shows that plaintiffs who “look gay” often find protection under Title VII, while plaintiffs thought to violate gender norms—through known or suspected sexual activity, friendships, hobbies, or choice of partner—almost never win. 

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COMMENT: Fair Notice: Reassessing NLRB Authority to Inform Employees of Their Rights to Unionize

By Daniel B. Amodeo | 63 Am. U. L. Rev. 789 (2014)

Today, the vast majority of American workers are unaware of their substantive rights to organize and engage in concerted activities in the workplace. Over the last thirty years, union activism has experienced stark declines that have consequently lessened the level of public educational dialogue surrounding labor rights. As the agency tasked with promoting and enforcing labor organization rights, the National Labor Relations Board (NLRB) sought to combat this issue through its rarely utilized rulemaking authority—a measure fraught with perilous consequences. In 2011, the NLRB promulgated a regulation that required employers to display posters in the workplace that inform employees of their substantive rights. This effort faced major criticism, setting off litigation that invalidated the notice poster requirement and ultimately curtailed the NLRB’s authority to codify substantive rules. Without reexamination, the results of the notice poster litigation will substantially impact the NLRB’s future rulemaking efforts. 

Despite the Supreme Court’s affirmation of the NLRB’s power to issue substantive rules in American Hospital Ass’n v. NLRB, two courts invalidated the NLRB’s notice-posting regulation as an overreach of the Board’s rulemaking authority. Remarkably, both decisions arrived at the same conclusion through starkly different reasoning. Categorizing the NLRB as a purely reactive entity, the U.S. Court of Appeals for the Fourth Circuit invalidated the notice-posting rule as an impermissible proactive effort in Chamber of Commerce v. NLRB. Alternatively, in National Ass’n of Manufacturers v. NLRB, the U.S. Court of Appeals for the District of Columbia Circuit held that the notice-posting regulation violated statutory and constitutional protections of workplace speech regarding labor organization. 

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COMMENT: Yes, NBA Players Should Make More Money: How the NLRB can Change the Future of Collective Bargaining Agreements in Professional Sports

By Sam Ivo Burum | 63 Am. U. L. Rev. 845 (2014) 

As lockouts in professional sports have become increasingly common in recent years, the means to resolve these lockouts have also become more important. The 2011 National Basketball Association (NBA) lockout was one of the most significant in the league’s history, lasting 161 days and resulting in the cancellation of twenty-six regular season games. In addition to its length, the 2011 NBA lockout was significant because the NBA players and the National Basketball Players’ Association contested the legality of the NBA owners’ lockout through an approach grounded in
labor law; not through antitrust law as the National Football League players did earlier in 2011. 

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COMMENT: To Catch All Predators: Toward a Uniform Interpretation of "Sexual Activity" in the Federal Child Enticement Statute

By Julie A. Herward | 63 Am. U. L. Rev. 879 (2014)

The federal child enticement statute, codified at 18 U.S.C. § 2422(b), prohibits the use of interstate commerce to coerce a minor to engage in any illegal “sexual activity.” Congress enacted the statute in response to the rising number and forms of sexual crimes committed against children, especially crimes facilitated via the Internet. However, Congress did not explicitly define the meaning of “sexual activity” in § 2422(b).

Recently, several defendants have appealed their § 2422(b) convictions, asserting that they did not engage in “sexual activity” within the meaning of § 2422(b) because they never physically touched a child. In response to one of these appeals, the U.S. Court of Appeals for the Seventh Circuit, in United States v. Taylor, adopted a narrow interpretation of “sexual activity” that requires interpersonal physical contact between a defendant and a minor for culpability under the statute. However, the following year, the U.S. Court of Appeals for the Fourth Circuit expressly declined to adopt the Seventh Circuit’s interpretation in United States v. Fugit. Instead, the Fourth Circuit broadly interpreted “sexual activity” as not requiring physical contact.

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NOTE: The New Per Se Takings Rule: Koontz's Implicit Revolution of the Regulatory State

By Michael Castle Miller | 63 Am. U. L. Rev. 919 (2014)

Cities are becoming increasingly privatized. This phenomenon is demonstrated by the prevalence of gated communities and homeowner associations, which are essentially private governments for the benefit of a subset of city residents. Less noticeable, however, is the increasing privatization of municipal finance and spending. Rather than drawing from general tax revenue, city projects increasingly rely on payments from residents who either most benefit from them or make them most necessary. This “user pays” philosophy is especially manifest in the use of exactions, or, more specifically, impact fees, on new developments. Exactions are concessions demanded of landowners before local authorities will approve building permits. Traditional exactions take the form of physical dedications of real property, such as building roads within a subdivision or deeding the public an easement for a bike path or for the preservation of wetlands.Much more common today are impact fees, which are monetary exactions to help pay for improvements to off-site, system-wide infrastructure or even affordable housing projects or job training. Exactions are justified as methods of internalizing the costs of new growth to the developers promoting the growth. For example, new development leads to increased water use, sewage, traffic, stormwater runoff, school enrollment, and fire coverage, among other things all of which will increase costs for the city. Without exactions, these costs would be externalized, forcing taxpayers to bear them even though only a few developers may make them necessary.

This user pays logic should be attractive to those who lean libertarian on economic matters. From the libertarian perspective, members of society should not be forced to fund services from which they do not derive a proportionate benefit. In other words, each person’s contribution to services should be carefully tailored to his or her benefit from those services. In the context of municipal services, improved infrastructure more heavily benefits developers than average individual taxpayers because the improvements increase the city’s capacity to accommodate new residents and makesubsequent developments more valuable. Thus, developers should shoulder a greater burden for financing these improvements than the average taxpayer. 

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