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Volume 18, Issue 1

Volume 17, Issue 2

Volume 17, Issue 1

#MeToo’s Landmark, Yet Flawed, Impact on Dispute Resolution: The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021

By: Szalai, Imre S. | April 1, 2023

On March 3, 2022, President Joe Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the Amendment) into law. This Amendment is the most significant change in the last several decades to the Federal Arbitration Act (the FAA), the main federal law governing arbitration since 1925. This landmark Amendment is also the most important federal legislation to arise thus far from the #MeToo movement. The Amendment invalidates predispute arbitration agreements in cases involving sexual harassment or sexual assault, thereby allowing survivors to proceed with their claims in public court with more robust procedural protections. With hundreds of millions of arbitration agreements in place covering consumers and workers, the Amendment can impact access to justice and shape how disputes are resolved. While the goals of the Amendment are laudable, the Amendment suffers from several problems, including poor drafting that leads to at least three different interpretations of its scope. These ambiguities particularly arise when a survivor asserts a sexual harassment claim in addition to other types of claims. Furthermore, it is uncertain whether the Amendment applies in a labor setting with a collective bargaining agreement. The Amendment may also be unconstitutional as applied in certain settings involving state courts and state tort claims. Additionally, the Amendment raises deeper questions about the regulation of arbitration and proper role of arbitration in society. This Article clarifies some of the confusion regarding the Amendment by proposing a particular interpretation of the Amendment’s scope: the Amendment should be construed to cover all claims that have a nexus with a sexual assault or sexual harassment claim. The justifications for the Amendment also suggest that future reforms of arbitration law should address discrimination and other forms of harassment.

Human Rights, Trans Rights, Prisoners’ Rights: An International Comparison

By: Butcher, Tom | April 1, 2023

In this Note, I conduct an international comparison of the state of trans prisoners’ rights to explore how different national legal contexts impact the likelihood of achieving further liberation through appeals to human rights ideals. I examine the United States, Canada, the United Kingdom, Australia, India, Argentina, and Costa Rica and show the degree to which a human rights framework has been successful thus far in advancing trans prisoners’ rights. My analysis also indicates that the degree to which a human rights framework is likely to be successful in the future varies greatly between countries. In countries that are hesitant to adopt a legally internationalist orientation, a human rights framework is unlikely to see much success. Additionally, even countries with robust human rights traditions may be unlikely to apply that framework if the needs and identities of imprisoned trans people are not sufficiently visible in the national public consciousness. However, in countries with significant human rights or international law traditions, as well as a high degree of trans visibility, appeals to a human rights framework will likely lead to success in advocating for further protections for trans prisoners’ rights.

Legally Alone: The Redeemability of Guardianship and Recommendations Toward Equitable Access

By: Hecker, Patrick | April 1, 2023

American adult guardianship needs reform. Thankfully, there is a small but dedicated reform movement that sheds helpful light on problems of underfunding, inattention, and abuse. While the movement’s efforts are needed, this Note argues it is a mistake to focus solely on the ways the guardianship system is sometimes harmful to people who already have access to guardianship. Few reformers consider the needs of people who would benefit from a guardian but do not have anyone to petition the court on their behalf. This Note first argues that guardianship, despite its detractors, is redeemable. It can be part of a beneficial legal response to the problems of mass-incapacity and loneliness in America. This is especially true for the unbefriended and incapacitated population living in long-term care facilities—a frequently mistreated population. Second, the Note describes how the current legal structure surrounding public guardianship creates a market failure that incentivizes long-term care facilities to petition the wrong residents—residents who would benefit from alternative arrangements. Medicaid billing regulations, expenses related to the petitioning process, and the state of many public guardianship programs all contribute to the market failure. This leaves the unbefriended and incapacitated population without the benefits of a reformed guardianship system and exposes residents who would benefit from alternatives to abuse. The Note closes with recommendations on how to reform the incentive structure to create a cost-neutral petitioning process and a more humane and caring public guardianship service.