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Most Recent Print Issue

Volume 72, Issue 1 

Published Winter 2023


Climate Discrimination
Duane Rudolph

This Article focuses on the coming legal plight of workers in the United States, who will likely face discrimination as they search for work outside their home states. The Article takes for granted that climate change will have forced those workers across state and international boundaries, a reality dramatically witnessed in the United States during the Dust Bowl of the 1930s. During that environmental emergency (and the devastation it wrought), workers were forced across boundaries only to be violently discriminated against upon arrival in their new domiciles. Such discrimination is likely to recur, and it will threaten the livelihoods of workers across the country, especially the poor and workers from minority communities.

While it may be tempting to believe that the current array of federal employment-discrimination laws is both comprehensive and flexible enough to meet the challenges ahead, the prevailing interpretations of federal employment-discrimination laws show that applicable federal law will not be able to respond. Specifically, the main federal statutes targeting employment discrimination, including the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, Title I of the Americans with Disabilities Act of 1990, and 42 U.S.C. § 1981 (1991) will be of limited utility to judges, workers, lawyers, and employers, among others, if Congress does not amend them.

The Article is novel in at least three ways. First, it is the only article addressing the confluence of climate change and employment discrimination in the United States. Second, the Article is innovative in an additional way—it argues that groundbreaking recent precedent from the Supreme Court of the United States interpreting a federal employment anti-discrimination statute, notably Bostock v. Clayton County, does not cover employment discrimination based on climatic displacement. Third, the Article is the first to propose a number of climate-related changes to federal employment-discrimination statutes to facilitate the work of judges, workers, lawyers, and employers, among others. The Article argues that in the absence of protection under federal law, claimants will likely turn to state employment-discrimination laws, state common- law causes of action, and constitutional claims under federal law that likely will provide inadequate relief.


Conflicts of Interest at an Organization’s Highest Authority: How the District of Columbia’s Rules of Professional Conduct Can Fail to Protect Private Organizations
Christopher Deubert

This Article examines how the District of Columbia’s incomplete incorporation of the Model Rules of Professional Conduct into its own Rules of Professional Conduct has created a scenario in which wrongdoing inside a private organization can flourish. In 2002, following the Enron scandal, the American Bar Association (ABA) revisited and revised its Model Rules of Professional Conduct. The ABA nevertheless took a conservative route, rejecting rules long proposed by experts which would have permitted attorneys aware of corporate crimes, fraud, and other wrongdoing to report their concerns to individuals or entities outside the organization’s reporting structure. Additional scandals unfolded contemporaneous with the ABA’s revisions, instigating federal legislation, the Sarbanes-Oxley Act of 2002. Regulations promulgated under that Act included the reporting out opportunity long sought by ethics experts. In light of the new federal legislation, the ABA, in 2003, finally passed a revised Model Rule 1.13 which requires attorneys to report wrongdoing up the ladder to an organization’s highest authority and permits those attorneys to report out such wrongdoing in the event the highest authority failed to respond appropriately.

Unfortunately, the District of Columbia did not heed these lessons. Citing antiquated notions of client confidentiality, the District adopted an approach which requires an attorney to report wrongdoing up the ladder but then fully accept the results of that reporting, even if the highest authority to whom the attorney reports the misconduct is the one engaging in the misconduct. In so doing, the District has created a structure which incentivizes the termination of ethical attorneys in order to cover up corporate wrongdoing. This Article recommends changes to the District of Columbia’s Rules of Professional Conduct which will enable the District to take the lead in promoting a bar committed to ethical conduct and appropriate corporate governance.


Toothless Trade? Implications of the Federal Circuit’s ClearCorrect Decision for the Enforceability of Intellectual Property Protections in Digital Trade under USMCA
Alissa Chase

Digital trade is growing faster than trade in goods and services and comprises a key area for innovation and intellectual property concerns. The United States-Mexico-Canada Agreement (“USMCA”) acknowledged this development by including chapters devoted to both digital trade and intellectual property. In 2015, the Federal Circuit held that the International Trade Commission (“ITC”) does not have jurisdiction over unfairly traded digital goods. Without exclusion orders issued by the ITC, the United States lacks a powerful tool to enforce the USMCA provisions protecting intellectual property in unfairly traded digital goods. This comment explores the implications of the Federal Circuit’s 2015 ClearCorrect decision for the United States’s enforcement obligations under USMCA and provides options to intellectual property rights holders and practitioners interested in protecting the domestic industry’s digital goods from intellectual property rights infringement.


Federal Protection of Illegal Short-Term Rentals: How the Protecting Local Authority and Neighborhoods Act Will Hold Airbnb Liable, Enforcing Local Regulations
Nicole Schaeffer

Section 230 has come under scrutiny from academics and politicians, leading to calls on lawmakers to limit, or even end, Section 230’s immunity for Internet corporations; however, less attention has been given to the effects of Section 230 on the legal landscape in local, off-line communities. Online providers of short-term rental (STR) services such as Airbnb have used Section 230’s protection to shift the burden of complying with local laws and lease agreements onto the users listing STRs. By wielding Section 230 as both a sword and shield in litigation over their listings that violate local laws and lease agreements, these providers leave landlords and local governments seemingly without recourse. The PLAN Act (the Bill for Protecting Local Authority and Neighborhoods Act), proposed in the House in the 117th Congress in 2021, would remedy this overlooked and unjust result of Section 230’s protection. This article seeks to demonstrate why the PLAN Act must be passed to prevent further unfair application of Section 230.



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