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"Professor of Law at Catholic University Roger C. Hartley provides a thorough overview of the issue of Confederate monuments and their problematic presence on the American landscape. He examines and dissects competing claims regarding the removal of these monuments from public spaces ... mov[ing] readers through various debates on the subject ...with the compelling logic of a legal scholar ... methodically build[ing] the case that 'Confederate monuments harm contemporary American society by perpetuating antiblack racial stereotyping and systemic racism.' This harm, he continues, 'overrides even good faith claims to leave Confederate monuments undisturbed in order to preserve Southern heritage.' In the course of building this case for material harm, Hartley nonetheless offers his own good faith discussions of competing arguments for retaining Confederate monuments in situ. While these include 'heritage' claims, they also include those sometimes heard from historians and historic preservationists regarding the significance of monuments as teaching tools and the dangers of 'sanitizing' the historical landscape. While Hartley's argument ultimately makes a compelling case for removal/relocation as the optimal choice, he does not dismiss the alternative arguments. Instead, he deconstructs each and examines them for potential flaws in a way that will force readers to examine their own beliefs"--

There are roughly 700 Confederate monuments still standing in courthouse lawns, parks, and downtown squares in virtually every city, town, and village throughout the "Old South." Most of these Confederate monuments are located in states that have enacted legislation that bans the removal of Confederate monuments. Such legislative bans are in effect in Alabama, Georgia, Kentucky Mississippi, North Carolina, South Carolina, and Tennessee. Legislation that bans removal of Confederate monuments from public spaces poses a racial justice issue for millions of residents in these states because it forces political majorities in Southern communities (many constituting majority-minority communities) to host a Confederate monument that local residents view as racist. Cities that would remove their local Confederate monument, but are precluded from doing so by state legislation banning such removal, have failed in their efforts to develop a successful litigation strategy to challenge the constitutionality of state monument removal bans. Such litigation efforts fail because lower courts interpret United States Supreme Court precedent to hold that a city does not possess any constitutional rights that it can enforce against its own state government. Unable to assert any constitutional right of its own, cities have been unable to gain standing to challenge the constitutionality of state legislation that bans the removal of a city's Confederate monument. See, e.g., State of Alabama v. City of Birmingham, 299 So.3d. 220 (Ala, S. Ct. 2019). This article develops a constitutional theory that overcomes the main hurdle that has prevented local jurisdictions from successfully challenging state monument removal bans. The argument in this article is structured on the Constitution's coerced speech doctrine. The hurdles to effectively challenging state monument removal bans can be surmounted when cities combine with residents to jointly assert in litigation the residents' First Amendment right not to be coerced by state government into ...

In recent years, the debate over the future of Confederate monuments has taken center stage and caused bitter clashes in communities throughout the American South. At the heart of the debate is the question of what these monuments represent. The arguments and counterarguments are formulated around sets of assumptions grounded in Southern history, politics, culture, and race relations. Comprehending and evaluating accurately the associated claims and counterclaims calls for a careful examination of facts and legal considerations relevant to each side's assertations. In Monumental Harm, Roger C. Hartley offers a road map to addressing and resolving this acrimonious debate. ; https://scholarship.law.edu/fac_books/1137/thumbnail.jpg

Since the Constitution's ratification, members of Congress, following Article V, have proposed approximately twelve thousand amendments, and states have filed several hundred petitions with Congress for the convening of a constitutional convention. Only twenty-seven amendments have been approved in 225 years. Why do members of Congress continue to introduce amendments at a pace of almost two hundred a year? This book is a demonstration of how social reformers and politicians have used the amendment process to achieve favorable political results even as their proposed amendments have failed to be adopted. For example, the ERA "failed" in the sense that it was never ratified, but the mobilization to ratify the ERA helped build the feminist movement (and also sparked a countermobilization). Similarly, the Supreme Court's ban on compulsory school prayer led to a barrage of proposed amendments to reverse the Court. They failed to achieve the requisite two-thirds support from Congress, but nevertheless had an impact on the political landscape. The definition of the relationship between Congress and the President in the conduct of foreign policy can also be traced directly to failed efforts to amend the Constitution during the Cold War. Roger Hartley examines familiar examples like the ERA, balanced budget amendment proposals, and pro-life attempts to overturn Roe v. Wade, but also takes the reader on a three-century tour of lesser-known amendments. He explains how often the mere threat of calling a constitutional convention (at which anything could happen) effected political change. ; https://scholarship.law.edu/fac_books/1119/thumbnail.jpg

Workplace captive audience meetings are assemblies of employees during paid work time in which employers compel employees to listen to antiunion and other types of proselytizing. Employers enforce attendance at workplace captive audience meetings by threats of discharge. Typically, employers deny employees the right to ask questions or express disagreement with the anti-union views presented during these mandatory meetings. Soon after the enactment of the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) concluded that workplace captive audience meetings discussing unionization are per se unlawful. However, the NLRB reversed course following the enactment of the 1947 Taft-Hartley Amendments to the NLRA, concluding that employer free speech rights immunize captive audience meetings from regulation. This remains the NLRB's view. In this Article, I demonstrate that employers' First Amendment free speech rights do not preclude a ban on captive audience meetings. Instead, employees are a "captive audience" whom the Constitution protects from being force-fed the employer's religious and political ideology at the workplace. Employers, accordingly, have no free speech right to coerce workplace ideological listening. The scope of employers' constitutional right to free speech as juxtaposed against employees' freedom not to listen is a timely issue. Several state legislatures are considering--and two have enacted versions of-the Worker Freedom Act, which bans workplace captive audience meetings discussing either religious or political matters. Opponents of the Worker Freedom Act have initiated legal challenges that are in the early stages of litigation, and many more such challenges are anticipated as more states adopt the Worker Freedom Act. The employer's alleged free speech rights, as embodied in these meetings, and preemption of state law by the NLRA will be two key issues in this litigation. This Article demonstrates that the resolution of each of those issues will depend on whether the reviewing court acknowledges that employees have a constitutionally-recognized freedom not to listen.

For roughly a decade, federal legislation has devolved to the states some of Congress's authority to adopt immigration policies that discriminate against permanent resident aliens. Equal protection challenges to discriminatory state policies so authorized by Congress raise the knotty issue of the appropriate scope of judicial review. Courts remain divided. The source of the difficulty is that the equal protection "congruence principle" is not applicable to alienage discrimination. Unlike equal protection cases throughout most of constitutional law, the judiciary deploys different standards of judicial review in alienage discrimination cases depending on whether the discrimination arises under federal or state law. Applying a highly deferential standard of review, courts normally uphold congressionally enacted immigration policies discriminating against aliens. By contrast, courts normally invoke strict judicial scrutiny to find state alienage discrimination unlawful. Congressional devolution legislation authorizing states to adopt policies that discriminate against aliens spawn equal protection challenges that do not fit neatly into either category of judicial review: the controversies entail state alienage discrimination but the discrimination being challenged is congressionally authorized. Devolution presents the question whether Congress should be able to immunize the states from strict judicial scrutiny by authorizing the states to adopt discriminatory immigration policies that Congress could itself adopt. That question is the subject of this Article. In this Article, I show that, to date, the devolution debate has become mired, and is deadlocked, because it has failed to focus on the separation of powers implications of congressional devolution. I show that, properly understood, congressional devolution poses complex issues regarding the respective authority of Congress and the federal judiciary to superintend, and ultimately define, the Constitution's equality norms. These separation of powers implications of congressional devolution are not likely to be overlooked when the devolution issue eventually reaches the Supreme Court. My thesis is that addressing congressional devolution as primarily a separation of powers problem holds the key to resolving the proper scope of judicial review of congressionally-authorized state alienage discrimination.

Nationwide, state and local governments are adopting policies that oblige their private-sector business partners to pay employees a "living wage" and/or to agree in various ways not to use public funds to finance anti-union activities. Conventional labor preemption principles would invalidate many of these conditional business arrangements unless they are immunized by preemption's market participant doctrine, first applied in the now decade-old Boston Harbor case. Accordingly, the focus of preemption litigation challenging living wage and labor peace policies ordinarily is the immunity's applicability. Because its reach is subject to widely varying interpretations, there exists a need to fix workable and principled limits for the immunity's operation. This article addresses that need. Part II briefly describes labor law preemption but moves straightaway into a discussion of the market participant immunity doctrine. This examination shows that consistent administration of the immunity is thwarted by deep divisions among the lower courts. Coherency depends on resolving several discernible categories of disagreement. Part III proposes a solution. It argues that the immunity serves the constitutional function of restraining Congress's preemptive authority to assure states an equality of treatment with the private sector. Stated otherwise, my thesis is that the outcome in Boston Harbor was constitutionally prescribed. From this interpretation I demonstrate that disputes regarding a state's assertion of the immunity should be resolved by inquiring first into whether federal labor law would privilege a similarly situated private-sector employer to engage in the activity for which local government claims immunity protection. If so, then the outcome should turn on whether local government's purpose was to promote its own proprietary self-interest or whether it engaged in that activity as a pretext for setting labor policy. Part IV applies this two-part standard to analyze living wage and labor peace policies. Some are valid because they fall within a well-established labor preemption exception having nothing to do with market participant theory. Others are likely to be found invalid because they regulate within labor law's protected zones and courts are not likely to extend the market participant immunity to them. For the rest, I show that while the state may be acting within a zone also occupied by federal labor law, market participant immunity provides a safe harbor.

In this article, I focus on the Section 5 branch of the federalism revival, the branch that was at issue in Board of Trustees of the University of Alabama v. Garrett, and the one that is most likely to arise when litigating on behalf of or against an arm of state government. In order to position Garrett doctrinally, I first describe the conceptual framework that determines the validity of Congress' effort to abrogate state judicial sovereignty. This is an abridged version since more complete histories have been reported widely, both recently in these pages, and in many other journals. I then turn to Garrett's holding and the Court's reasoning to demonstrate that Garrett raised the bar, making it more problematic than ever that Congress will be able to deploy Section 5 to abrogate state judicial immunity. I shall argue that the outcome in Garrett was dictated neither by precedent nor by the rational basis standard of judicial review accorded disability-based discrimination. After evaluating the Court's decision, I evaluate some options for enforcing federal rights that have survived Garrett. I finish with a discussion of some likely repercussions we might expect from Garrett.

A central component of the overhauled union organizing strategy is greater reliance on the pre-recognition neutrality agreement negotiated with an employer whose employees a union is attempting to organize. This article examines these neutrality agreements. Part I locates the neutrality agreement within unions' revitalized approach to organizing." This discussion shows that neutrality agreements can redress four disadvantages unions confront when organizing: employer intimidation, harmful delay, inadequate access to employees, and inability to secure a first contract. These disadvantages, widely understood as contributing significantly to the decline in union membership during the last quarter of the twentieth century, constitute the core of the unions' complaint about the Taft-Hartley Act's representation processes and the NLRB's administration of it. Rectifying these impediments to effective organizing constitutes the nucleus of proposals for legislative labor law reform. What emerges from this discussion, therefore, is a clearer understanding that the neutrality agreement is not simply another innovative organizing tool. It is that. But it is also an elegant mechanism carefully fashioned to provide the labor movement non-legislative labor law reform. Sweeney calls this reform "the civil rights issue of the 1990s'' because it makes the right of self-organization more meaningful. Part II examines the important question of how unions manage to secure these agreements. Normally, unions trade for them. What a union can offer depends on many factors, such as whether some of the employer's operations already are organized, whether an employer needs to resolve certain legal conflicts with a union, and whether the employer is vulnerable to the vagaries of governmental regulation and in need of the union's assistance in winning beneficial regulatory rulings. One of the most important ways a union secures a neutrality agreement is when a state or local government requires one from a private sector employer with whom it does business. In addition, unions sometimes are able to leverage their own financial power by investing union funds only with corporations that agree to enter into neutrality agreements. Part III catalogs the most important legal issues neutrality agreements are likely to generate, locates the primary points of disagreement within each issue, and clarifies the likely considerations on which the outcomes will depend in neutrality agreement litigation. Neutrality agreements are likely to create both statutory and constitutional litigation. The statutory issues will arise under the Taft-Hartley Act. They will involve the negotiation and enforcement of neutrality agreements as well as their effect on third parties. The constitutional controversies will arise because neutrality agreements can create labor preemption concerns. Preemption issues will most likely arise-when local government requires a neutrality agreement from a private developer as a condition of being provided access to public land or public financing.

In this Article, I discuss the Alden Trilogy's interpretive process and its redistribution of political power, but do not linger on either. This Article is written in praise of the Trilogy, but praise coupled with protest. I make three essential points. First, the Trilogy deserves praise as a pragmatic masterpiece. Through it the Court shrewdly avoided a constitutional quagmire that easily could have created a federalism crisis. Second, I argue that the Alden Trilogy is an exemplar of misdirection. Here I render reluctant praise, like that given to an opposing baseball team's dramatic double-play. Though one dislikes the outcome, one cannot deny the skill just witnessed. In this regard, I show that through its deft deployment of state sovereign immunity doctrine, the Supreme Court has enhanced its own power as well as that of the federal Executive Branch to the detriment of Congress's lawmaking power. Moreover, although the Trilogy focuses on Congress's remedial authority, it thwarts Congress's substantive lawmaking capacity. Third, I show that the Trilogy has a dark side. Today, no individual can bring a damage action in any court against an unconsenting state to enforce federal statutory rights enacted pursuant to Congress's Article I powers.2" This situation creates a profoundly disquieting enforcement gap that threatens to undermine the rule of law values in our constitutional scheme, particularly the principle that for every right there ought to be a remedy. To situate this Article's praise and protest of the Alden Trilogy doctrinally, I begin with an abridged summary of the federalism developments of the past several decades, developments that preordained the confrontation that resulted in the Trilogy. Next, I describe the holdings of each Trilogy case, including the interpretive frameworks adopted, and identify unresolved issues generated by these holdings. I then turn to my principal undertaking: consideration of 1) how the Trilogy pragmatically avoided a constitutional crisis; 2) how the three cases masterfully invite attention in one direction while moving the law in another; and 3) how these cases raise rule of law concerns by creating a disjunction between Congress' substantive and remedial authority.

State sanctioned disability-based discrimination comes in two basic flavors: prejudice and thoughtlessness. The former takes disability into consideration, while the latter ignores it. The Fourteenth Amendment's Equal Protection Clause prohibits the prejudice but not the thoughtlessness, at least when the latter is unassociated with irrational assumptions based on myths, fears and stereotypes. Unlike most other civil rights statutes, the Americans With Disabilities Act (hereinafter "ADA" or "Act") prohibits both prejudice and thoughtlessness and aptly has been characterized as a "second-generation civil rights statute." Unfortunately, the ADA's claim to innovation might yet prove to be its constitutional Achilles heel. Across the United States, state governments are challenging Congress's constitutional power under Section 5 of the Fourteenth Amendment to prohibit any state-sponsored disability-based discrimination other than prejudice-based differential treatment. The spear point of this constitutional attack is the ADA's requirement that the states as employers sometimes must provide a reasonable accommodation. This article explores the issues raised by this constitutional assault on the ADA.

This article explains how the NLRB, contrary to its protestations of noninterference with internal union affairs, has perfected its grip on union self-governance through control of the union disciplinary processes. The disparity between the Board's policies and its actions discredits the Board's proclaimed abstention. Second, this article examines whether the NLRB overreaches its regulatory authority through its intervention in the officer selection and discipline processes. NLRB regulation of union discipline rests primarily on section 8(b)(1)(A) of the Labor Management Relations (Taft-Hartley) Act.8 The Board's early decisions under this section, as well as judicial precedent, defined a narrower role for NLRB intervention than the role presently claimed by the Board. Courts increasingly are rejecting the NLRB's assertion of broad regulatory authority. The Supreme Court's union discipline cases, decided over a decade ago, initiated these judicial misgivings. Moreover, the Supreme Court's more recent decisions in Pattern Makers' League v. NLRB and Communication Workers v. Beck require a reappraisal of expansive NLRB monitoring of internal union life. Pattern Makers' and Beck ring in a new era of voluntary unionism that demands acknowledgement. Finally, this article addresses the various conflicting interests that underlie and oppose NLRB intervention in internal union affairs. The Board's decisions rarely discuss their practical impact on unions or their contribution to the national policy aspirations that unions be governed democratically and independently. The desirability of Board intervention, however, should be assessed by considering all of the legitimate conflicting interests raised: the individual rights at risk, the union majority's collective associational interests, and the wider public interest in union democratic selfgovernment with minimal governmental interference."

This article ventures into, and attempts to clarify, the context that affects and is affected by the law regulating union government. Drawing extensively from disciplines other than law, it posits a unified role for this body of law by focusing on unions' assigned societal functions and the realities of their structure and government. Part II traces the context in which the law regulating union government develops. It first describes the dual governments unions administer, and the competing interests within each that law must accommodate. It then suggests possible causes of the doctrinal fragmentation observed in the law regulating union government, and shows how uncertainty regarding the definition of union democracy, its possibility and desirability, and the necessity of public intervention to attain it can contribute to doctrinal fragmentation. Seeking to resolve these uncertainties, the article, in parts III and IV, analyzes unions' assigned societal functions and their governing structures, because in part V union function and structure are shown to condition significantly the preferred definition of union democracy, its possibility and desirability, and the necessity of public regulation to attain it. The article concludes by advancing a preferred model of union democracy-one that is possible and would not frustrate unions' fulfilling assigned societal functions-and by suggesting a unified role for law and legal institutions attempting to preserve and promote such democracy. In short, this article describes the framework of democracy in union government from a policy-oriented perspective. It offers the contesting parties, decisionmakers, and other interested persons a tool for analysis rather than a calculus for exact answers. The descriptive, predictive, and prescriptive functions of legal analysis can then proceed in a more orderly manner.

On February 19, 2021, the Black Law Students Association (BLSA), Criminal Law Society (CLS), Diversity and Inclusion Advisory Council, Federalist Society, and Street Law jointly presented a program on "The Role of Qualified Immunity in Police Accountability. Denise Isaac (3L) welcomed the group, outlining the importance of events like this in discussing the role of qualified immunity and its legal and practical ties to the topic of police accountability. Isaac thanked the student organizations and their executive boards for bringing the topic to the Catholic Law community, and for their shared belief that "qualified immunity transcends the issues of political discourse."