Volume 51, Issue 1
Judges of the United States Court of Appeals for the Ninth Circuit
Rittmann v. Amazon.com, Inc.: Ninth Circuit Rules Amazon’s Drivers Fall Within the Federal Arbitration Act’s “Transportation Worker Exemption”
Amazon is among a large list of corporations that have long tried to enforce mandatory arbitration against delivery drivers who file suit in their respective jurisdictions. In recent years, delivery drivers have decided to fight back against private arbitration and to have their legal battles heard in court. In these cases, delivery drivers argue that they are exempt from arbitration under the Federal Arbitration Act (“FAA”) because they are engaged in interstate commerce. Section 1 of the FAA exempts from arbitration “contracts of employment of seaman, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Further, section 2 of the FAA governs whether the Act applies in the first place and broadly relates to “contract[s] evidencing a transaction involving commerce.” In a recent Ninth Circuit decision, the court established that delivery drivers are exempt from mandatory arbitration, allowing drivers to keep their lawsuits in court. In addition, the Ninth Circuit holding makes dismantling class or collective actions more problematic for transportation, logistics and gig-economy companies.
Isabella Borges, Rittmann v. Amazon.com, Inc.: Ninth Circuit Rules Amazon’s Drivers Fall Within the Federal Arbitration Act’s “Transportation Worker Exemption”, 51 Golden Gate U. L. Rev. 1 (2021).
Wells Fargo v. City of Oakland: A Matter of Proximate Cause
President Lyndon B. Johnson saw passage of the Fair Housing Act (“FHA”) to be a fitting tribute to the Reverend Dr. Martin Luther King, Jr., who had just been assassinated. The United States was in turmoil, much as it is today, with cities burning and people divided. The FHA was first introduced by Democratic senator Walter Mondale. The lobbying efforts of Republican senator Edward Brooke, the first Black senator to be elected by popular vote, and Democratic senator Edward Kennedy finally brought this legislation to fruition as Title VIII of the Civil Rights Act of 1968. Senator Mondale remarked, “in truly integrated neighborhoods, people have been able to live in peace and harmony— and both [Blacks] and whites are richer for the experience.” Although the FHA has been “rightfully lauded as one of the greatest achievements of the civil rights movement,” discriminatory lending practices have continued. These lending practices, called redlining and reverse redlining (also known as predatory lending), have not ceased to devastate individuals, families, neighborhoods and cities. In 2018, the City of Oakland, California (“Oakland”), sued Wells Fargo to address part of what the FHA set out to do: end discrimination in lending. The court quoted senator Mondale, the chief sponsor of the FHA, who cited cities’ declining tax bases as a specific injury traced to discrimination in housing. Wells Fargo appealed to the Ninth Circuit, and pursuant to the Supreme Court’s decision in Bank of America Corporation v. City of Miami (“Miami I”), the court held that Oakland must be given a chance to prove that its harm was within the zone of interest affected by Wells Fargo’s actions.
Shawna Doughman, Wells Fargo v. City of Oakland: A Matter of Proximate Cause, 51 Golden Gate U. L. Rev. 11 (2021).
Dent v. NFL LMRA 301 Preemption: The Ninth Circuit Court of Appeals Throws a Penalty Flag on the NFL
Justin C. Trimachi
Part I of this Note will discuss the procedural history of the case, the Ninth Circuit’s application of the two-pronged test to determine if LMRA 301 preempted the players’ state-law claims, the facts of Dent v. NFL, and finally a brief history of the NFL and its usage of CBAs. Part II will give a brief overview of the Supreme Court’s development of LMRA 301 jurisprudence as well as its rulings on when LMRA 301 should preempt state-law tort claims. Part III will discuss the decisions by the Eighth Circuit in Williams and by the Eleventh Circuit in Atwater. Part IV of this Note will discuss why the Ninth Circuit’s test should be adopted throughout the federal court system to analyze whether LMRA 301 preempts state-law claims.
Justin C. Trimachi, Dent v. NFL LMRA 301 Preemption – The Ninth Circuit Court of Appeals Throws a Penalty Flag on the NFL, 51 Golden Gate U. L. Rev. 25 (2021).
Dyroff v. Ultimate Software Group, Inc.: A Reminder of the Broad Scope of § 230 Immunity
Alex S. Rifkind
Part I of this Note examines the factual and procedural history of Dyroff and discusses the Ninth Circuit’s application of § 230 immunity in the case. Part II outlines the history of the CDA and examines how the federal courts have interpreted § 230 immunity leading up to its application in Dyroff. Part III discusses judicial interpretation of the scope of § 230 immunity. Lastly, Part IV argues that the Ninth Circuit correctly applied the law in the Dyroff decision, but failed to adequately define the term content-neutral. Further, by not defining what falls within the scope of content-neutral, the Ninth Circuit’s holding implicitly immunizes any manipulation of third-party content facilitating communication that does not materially contribute to the content at issue. The broad shield of § 230 immunity, which was necessary for growth and development during the Internet’s infancy, is antiquated and should be narrowed by Congress to foster greater accountability to prevent tragedies like Dyroff from recurring.
Alex S. Rifkind, Dyroff v. Ultimate Software Group, Inc.: A Reminder of the Broad Scope of § 230 Immunity, 51 Golden Gate U. L. Rev. 49 (2021).
Volume 51, Issue 2
INTERVIEW: Black Lives Matter—A Discussion with Two Civil Rights Attorneys
Justin C. Trimachi
Dr. Martin Luther King Jr. once said, “Human progress is neither automatic nor inevitable . . . every step towards the goal of justice requires sacrifice, suffering and struggle, the tireless exertions and passionate concern of dedicated individuals.” The Black Lives Matter (“BLM”) movement has a formal presence in the United States, the United Kingdom, and Canada. The founders’ outrage at the acquittal of George Zimmerman, who they believed murdered Trayvon Martin in 2013, fueled BLM’s mission to empower Black communities to intervene in the violence inflicted on those communities by both the State and vigilantes and to eradicate white supremacy. Further, BLM goals include “combating and countering acts of violence, creating space for Black imagination and innovation, and centering Black joy to win immediate improvements.”
The movement seeks to center on those who have been marginalized by previous Black liberation movements. BLM affirms Black queer and trans individuals’ lives and seeks to move Black communities beyond “narrow nationalism.” It also works to create a world where Black lives are not “systematically targeted for demise” and affirm humanity in all of those facing “deadly oppression.” I reached out to two Black civil rights attorneys to give me their perspective on BLM. Both are alumni of Golden Gate University School of Law. The first, Walter Riley, graduated in 1968 and was recommended by Professor Leslie Rose, and the second, Dewitt M. Lacy, spoke in my Criminal Procedure class about his work as a civil rights attorney.
Justin C. Trimachi, INTERVIEW: Black Lives Matter—A Discussion with Two Civil Rights Attorneys, 51 Golden Gate U. L. Rev. 69 (2021).
Privity vs. Proximity: The Supreme Court’s Erroneous Reading of the Illinois Brick Doctrine in Apple Inc. v. Pepper
Suzin A. Win
The rapid development of the digital marketplace led the United States Supreme Court to revisit the forty-two year old antitrust precedent set in Illinois Brick Co. v. Illinois. In Illinois Brick, the Supreme Court decided that under Section 4 of the Clayton Act, direct purchasers have standing to sue for treble damages due to unfair business practices, while indirect purchasers do not. Over four decades later, in Apple Inc. v. Pepper, the Court reevaluated this doctrine. This time, the Court had to determine which party received the “direct purchaser” status in a situation where plaintiffs bought apps from third-party developers in Apple’s App store at prices set by the developers.
iPhone users argued that Apple unlawfully monopolized the retail market for the sale of apps, setting higher-than-competitive prices and locking consumers into buying apps only from Apple. Apple asserted a statutory standing defense under Illinois Brick, arguing that the plaintiffs did not have standing because they were not direct purchasers from Apple. The Court found that iPhone users who purchased apps from the App Store were direct purchasers because they purchased apps directly from Apple and thus have standing under Illinois Brick to sue for damages due to alleged antitrust violations under Section 4 of the Clayton Act.
This Comment proposes that the Apple majority should have read the Illinois Brick Doctrine through the traditional proximate cause analysis of the Clayton Act. In its primary context, antitrust law was considered a codification of the common law, and any conduct that restrained trade was considered on par with other harmful torts. Accordingly, under the tort concept of proximate cause, the correct plaintiff with standing to bring suit for damages is the one most proximately harmed by the antitrust conduct. iPhone users have a causal link between Apple and themselves due to purchasing apps directly from the App Store and are thus directly harmed by Apple’s alleged monopolistic conduct. Moreover, by declaring that iPhone users were direct purchasers under the Illinois Brick Doctrine because they contracted with Apple, the majority confirmed a pass-on theory that was rejected by both Illinois Brick and Hanover Shoe. The Illinois Brick opinion was concerned with tracing complex economic adjustments and stated that pass-on cases would allow for apportionment of the recovery throughout the distribution chain and increase the overall costs of recovery. Under a proximate cause analysis, this complexity would be eliminated, as the Court may compute damages through a comparison of markets, rather than estimating the amounts passed on at each stage of the distribution chain.
Suzin A. Win, Privity vs. Proximity: The Supreme Court’s Erroneous Reading of the Illinois Brick Doctrine in Apple Inc. v. Pepper, 51 Golden Gate U. L. Rev. 77 (2021).
An Absolute Deprivation of Liberty: Why Indigents’ Wealth-based Discrimination Claims Brought Under the Equal Protection Clause Should Be Subject to Intermediate Scrutiny
This Comment argues that wealth-based discrimination claims concerning pretrial detention of indigents should be analyzed under an Equal Protection framework and subjected to intermediate scrutiny. In order to provide an overview of the Supreme Court precedent established for these types of claims, Part I of this Comment will discuss the relevant and historic Supreme Court cases which have analyzed wealth-based incarceration claims in the United States. To further establish how Federal Courts have treated wealth-based incarceration Equal Protection claims, Part II will discuss the Fifth Circuit’s relevant opinions. Part III outlines the court’s decision in Walker, discussing how the Eleventh Circuit panel arrived at its holding and consequently created a split among the federal circuit courts that is yet to be resolved.
This Comment further argues that the Eleventh Circuit’s decision in Walker is erroneous. Part IV will outline why the Eleventh Circuit should have applied intermediate scrutiny to Walker’s wealth-based discrimination claim, and highlights the fallacious logic the court employed in reaching its holding. Additionally, this section will also argue that Walker sets a harmful precedent for indigent defendants. Wealth-based discrimination claims concerning an indigent’s pretrial liberty are categorically different from other wealth-based discrimination claims which don’t concern a liberty right. As such, these claims should be analyzed with a heightened level of scrutiny beyond mere rational basis review.
Athena Hernandez, An Absolute Deprivation of Liberty: Why Indigents’ Wealth-based Discrimination Claims Brought Under the Equal Protection Clause Should Be Subject to Intermediate Scrutiny, 51 Golden Gate U. L. Rev. 103 (2021).
Total Makeover: Federal Cosmetics Regulation and Its Need for Legislative Overhaul to Ensure Consumer Protection
The cosmetic industry’s lack of federal oversight has given rise to concerns regarding consumer safety. Amy Friedman’s story is one example of how the current lack of FDA cosmetic regulation causes actual harm to consumers.26 The current regulatory scheme allows cosmetic companies to operate with little to no government review, leaving consumers vulnerable to potential bad actors. This Comment discusses the problematic effects of the current regulatory framework on the health and safety of consumers, and explores the SCPCPA and its proposed amendments to the FDA’s regulatory authority over cosmetics.
This Comment argues that the SCPCPA is a necessary legislative solution to the current lack of federal cosmetics regulation. Consequently, this Comment argues that the SCPCPA should be re-introduced and passed in order to protect the health and safety of consumers.
Part I begins with a discussion of the FFDCA and the FDA’s limited authority to regulate cosmetics. Part II provides an overview of the proposed SCPCPA bill and its provisions. This section explores how the bill purported to amend the FFDCA by broadening the FDA’s regulatory power over the cosmetics industry. Part III details two instances wherein the lack of federal oversight over cosmetics threatened consumer safety: the WEN incident and a second one involving Johnson & Johnson talcum powder found to be contaminated with asbestos. Lastly, Part IV argues that Congress should enact the SCPCPA because it would provide the FDA with the necessary authority to effectively regulate cosmetics and protect consumers. This section begins by examining the provisions of the SCPCPA in the context of the WEN and Johnson’s incidents, and argues that these incidents could have been prevented or minimized if the FDA had the authority the SCPCPA aimed to provide. To illustrate the feasibility of the SCPCPA provisions, this section then looks to the success of similar provisions in California’s existing cosmetics legislature including the state’s recently enacted Toxic-Free Cosmetics Act. Lastly, this section addresses legislators’ concerns as to federal preemption and the SCPCPA’s effect on small businesses.
Justice Tecson, Total Makeover: Federal Cosmetics Regulation and Its Need for Legislative Overhaul to Ensure Consumer Protection, 51 Golden Gate U. L. Rev. 127 (2021).
The Pleasure of the Contract: Legal Role Play from Leopold von Sacher-Masoch Through Noodles & Beef
Michael Angelo Tata
The recent article Nonbinding Bondage: Exploring the (Extra)legal Complexity of BDSM Contracts encapsulates the aesthetic legacy of the sex contract and its embodiment in what this Comment calls “legal role play,” or how individuals perform contractual play-acting for sexual gratification. In Part I, this Comment challenges Nonbinding Bondage’s historical arc, using this writing as a launchpad for a more extensive discussion of the sex contract’s aesthetic interpretation. Employing a vocabulary of parody, play and performance (all aesthetics terms), Nonbinding Bondage presents the most popular reading of subcultural BDSM contracts: that they mime aspects of traditional contracts to unearth truths about power relations. Through the contractual mimesis of legal role play, BDSM practitioners experience with pleasure and gusto distorted versions of traditional societal power exchanges.
In Part II, this Comment examines how mimesis and desire intertwined for two Washington State Pups—gay men whose fetish entailed dressing up as dogs—Noodles & Beef and Tank. Pups engage in a range of practices: they variously display symbolic contracts (doggie collars, chains), draft and sign consequential written agreements, and may even agree to have tracking software installed subcutaneously (“chipping”). This Comment looks to the notorious sex contract that Tank posted to his Tumblr page on December 20, 2012 in its social and legal context. Though legally unenforceable, Tank performed the terms of this document to the letter, and it became a fatal fetish. This fatality derived from the fact that the contract contained an implied provision mandating testicular silicone injections by the submissive Pup. These injections killed Tank, but they did not have to.
Next, Part II turns to the meretricious contract, or contract involving sexual exchange, as analogue to a BDSM contract like Noodles & Beef’s. Though legally unenforceable, the meretricious contract can itself become the site of social and political liberation and empowerment, as critical California cases Marvin v Marvin and Jones v. Daly have demonstrated. Such a contract will typically lose in court, as it did in both cases. Still, its loss can trigger the birth of new rights for genders and sexualities typically excluded from the protection afforded by constitutionally derived fundamental rights, like the right to marry. Contracts that are meretricious in nature can also create new rights for victims of detrimental reliance—whose non-monetary contributions to a non-marital arrangement have come to amount to nothing after the arrangement disintegrates—helping to equalize a gender imbalance. Because the unenforceable meretricious contract can increase sexual freedom and equality through notoriety, the performative aesthetics of Noodles & Beef’s sex contract might contain a silver lining after all, adding to its legal and cultural importance.
Michael Angelo Tata, The Pleasure of the Contract: Legal Role Play from Leopold von Sacher-Masoch Through Noodles & Beef, 51 Golden Gate U. L. Rev. 147 (2021).