Category: Volume 45

King Turned Commoner: The Effect of Fernandez v. California

In 2014, the Supreme Court decided Fernandez v. California, holding that an individual who objects to a warrantless search but is later lawfully removed from the premises can have his or her objection to the search superseded by a co-tenant. Such act of third-party consent, when a co-tenant who is not the suspect in the crime being investigated gives the police consent to search the home, is one of many setbacks in the long history of the erosion of the Fourth Amendment.

This Article addresses Fernandez and its impact on Fourth Amendment rights. The Article begins by discussing the myth of true consent to searches and how police officers have the appearance of authority, which triggers an ingrained need to comply with search requests. The Author also explores the ability of police to lawfully arrest a co-tenant who is objecting to a search and take him or her off premises to acquire consent from another co-tenant. The Author then calls for the abolition of consent searches altogether, emphasizing the relative ease of obtaining a search warrant—the preferred method to lawfully search a home and a method that has become increasingly convenient due to evolving technology. In the alternative to abolishing consent searches altogether, the Author suggests either: 1) requiring officers to apprise an individual of his or her right to refuse a search; or 2) redefining the word “present” so a suspect who has objected but has been subsequently arrested is still present and, therefore, his or her objection still stands and cannot be overridden by a co-tenant. The Author concludes by warning that without consent search reform, the Fourth Amendment will become nothing but words on a page.

Symposium Introduction and Dedication

Can Dystopia Be Avoided? Increasing Economic Inequality Can Lead to Disaster

The increase in economic inequality, driven by the imbalance between capital and labor, is likely to lead to dystopia without intervention that would reverse the trend. This Article examines dystopian-bound societies, explaining disparities of wealth, income, and per capita growth in various regions of the world. The Author analyzes the reasons for the imbalance between capital and labor, particularly the expansion of economic globalization and technology. The Article explains how the substitution of capital for labor impacts manufacturing and service sectors of industry. The Author also points out that the inequality could erode democracy because of the detrimental effect on the middle class. The Author delves into the correlation between the increase in economic inequality and the exacerbation of social problems, including mental illness, life expectancy, obesity, teenage births, homicides, and imprisonment.

The trend, the Author expounds, could be reversed by a political policy that would address the inequalities. Noting that economic inequality is worldwide, the Article also highlights other proposed solutions, including a globalized tax on capital and a symposium that addresses employment issues that feed into the economic inequality. The Author identifies gender and race discrimination, wage inequity, and the impact of unions as opportunities for employment-centric solutions that would address economic inequality. By identifying and examining the consequences of remaining on a path of increasing economic inequality that leads to dystopia, this Article offers multiple approaches to reverse the trend.

“Regilding the Gilded Age”: The Labor Question Reemerges

Former National Labor Relations Board Chair Wilma Liebman delivered the keynote address at the March 6, 2015 symposium titled Inequality, Opportunity, and the Law of the Workplace, hosted by Stetson Law Review. Chair Liebman spoke on the reemergence of worker activism and “the labor question.” Chair Liebman sees an opportunity to fundamentally reexamine labor law in the United States and to form a new approach to industrial democracy.

Indirect Threats to the Wages of Low-Income Workers: Garnishment and Payday Loans

Professor Steven Willborn was a panelist at the March 6, 2015 symposium titled Inequality, Opportunity, and the Law of the Workplace, hosted by Stetson Law Review. His remarks at the symposium identify two frequently overlooked threats to the economic security of low-wage workers—wage garnishment and payday loan practices. Professor Willborn examines these two “indirect” threats to lowwage workers and argues that current regulation of these threats is outdated and insufficient. Professor Willborn sees an opportunity to improve some protections for low-wage workers, because at least for these two indirect threats, the interests of the employee and his or her employer tend to be aligned.

How to Raise Wages: Policies That Work and Policies That Don’t

This Article reviews America’s primary economic challenge: wage stagnation. As a result of public policy, workers’ wages have either remained stagnant or declined over the past thirty-five years. This is the trend despite an increase in both real gross domestic product and worker productivity. To understand this trend, the Article begins by presenting two distinct sets of policy decisions that have stifled wage growth. The first set of policy decisions, aggregate factors, is described as causing excessive unemployment and disproportionate growth in executive pay. The second set, which is described as the weakening of workers’ ability to bargain for higher pay, has also kept wages from increasing.

In response to the underlying policies driving this trend, the Authors propose alternative policy decisions that should be taken to create jobs and increase wages, including the introduction of a higher minimum wage, the reformation of labor standards, and the strengthening of workers’ rights to collective bargaining, and others. The Authors also discuss policies that will not be beneficial to reaching full employment and increasing workers’ pay, including corporate tax reform, tax cuts, and deregulation. The Article concludes that the current trend of wage stagnation may be reversed by implementing beneficial policies that prioritize full employment over the accruement of wealth at the executive level, and policies to raise wages to correlate to increased productivity and economic growth.

Income Inequality and Corporate Structure

This Article addresses the impact of the corporate structure on the perpetuation of income inequality. Specifically, the Author argues that income inequality stems from the way corporations distribute wealth—away from employees and towards executives and investments in capital. The Article begins by discussing the legal structure of the corporation, in which the employees stand on the outside and have neither a say in the decision-making process nor a claim to profits. The Author also explores the failure of labor and employment law to address the problems of corporate structure and wealth distribution by precluding employees from collective bargaining over topics like executive compensation and corporate financial structuring. The Author proposes that one way to solve the problem of income inequality is to reimagine the corporate structure—replacing shareholder primacy with employee primacy. To achieve this, the Author suggests that corporations either shift to employee ownership or allow employees to serve on the board of directors. The Author concludes by warning that without meaningful employee participation in the governance of corporations, high-level executives will continue to devour a large share of the economic gains, leaving little for their employees.

The Employment Non-Discrimination Act After Hobby Lobby: Striving for Progress—Not Perfection

This Article analyzes the widespread, pressing issue of workplace discrimination based on sexual orientation and gender identity and the lack of federal legislation that explicitly prohibits such discrimination. In an effort to address this type of discrimination, the Employment Non-Discrimination Act (ENDA) was proposed with the purpose to explicitly prohibit discrimination based on sexual orientation and gender identity. Although ENDA was passed by the Senate, it has yet to be heard by the House of Representatives.

The Author argues that federal legislation like ENDA is needed to ensure workplace equality. The Article notes that some supporters of ENDA have withdrawn their support because of ENDA’s current religious exemption and the possible implications of the Supreme Court’s decision in Hobby Lobby. However, the Author argues that if ENDA is passed, the Supreme Court’s decision in Hobby Lobby will not affect ENDA’s enforcement. The Author also takes the position that ENDA’s current religious exemption is more beneficial than harmful. While the Author concedes that ENDA is not perfect, he concludes that passing ENDA is a necessary step to bringing workplace equality for the LGBT community.

Florida Workers’ Compensation Act: The Unconstitutional Erosion of the Quid Pro Quo

Workers’ compensation is a statutory “quid pro quo” mechanism that requires workers to relinquish their rights to sue employers in tort in exchange for employers paying for insurance that provides injured workers with medical benefits and loss-of-income protections. Workers gain by receiving simplified entitlement and expedited benefits, and employers gain by capping the risk of potentially devastating tort awards. Effective at first, Florida’s workers’ compensation legislation has not kept up with developments in tort and contract law, resulting in an imbalance in the quid pro quo transaction that pushes the scheme towards unconstitutionality.

This Article explains how an “unholy trinity” of affirmative defenses available to the employer—contributory negligence, assumption of risk, and the fellow servant rule—historically rendered an injured worker’s tort recovery untimely and uncertain. Workers’ compensation arose to equitably balance workers’ relinquishment of highly unpredictable tort recovery against employer-provided benefits that were guaranteed, but limited. The Article shows, however, that the archaic quid pro quo justification can no longer support Florida’s Workers’ Compensation Act as an injured worker’s exclusive remedy in light of Hoffman v. Jones’s replacement of contributory negligence with comparative fault, a de facto merger of the assumption of risk into comparative negligence, and a near-complete erosion of the fellow servant rule. Noting that Florida’s Constitution only allows statutory denial of one’s “day in court” if a reasonable alternative is provided, the Author argues that Florida’s workers’ compensation law is no longer a constitutionally reasonable alternative to workers’ increased ability to recover in tort. To restore balance, the Author proposes that the Florida Legislature either re-introduce the original “opt-out” mechanism, abolished in 1970, which would allow workers to contract out of workers’ compensation, or adopt a “double-protection” system that would enable workers to subsequently recover in tort any shortfall between workers’ compensation benefits and the total value determined for tangible and intangible injuries.

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