Monday, July 10, 2017

Scholarship: Reconciling Liberty and Equality Interests in Education Cases; Applying O'Bannon v. NCAA

Joshua Weishart, Equal Liberty in Proportion (forthcoming William & Mary Law Review)

Joshua Weishart (West Virginia) encourages state courts to balance both liberty and equality in addressing state constitutional claims of education disparities. The article is available on SSRN here. Excerpted from the abstract:

This Article proposes that courts analyze the state constitutional right to education as a claim for “equal liberty” and subject it to a new standard of review. State court adjudication of the right to education over the past five decades reflects ambivalence with heightened scrutiny in favor of an ad hoc means-ends review. That review confers substantial deference to legislative judgment and has excused persistent educational disparities based on the “reasonableness” of legislative efforts. To overcome these shortcomings and lingering justiciability concerns, courts need a principled methodology for reconciling liberty and equality interests.

Against tradition calling for these interests to be “balanced,” I contend that equality and liberty can yet maintain a positive, directly proportional relationship in the law. Applying direct-proportionality review, the judicial lens should focus on whether the state’s actions advance both equality and liberty interests in tandem and whether the margin between these ends is proportional so as to protect children from the harms of educational disparities.

Matt Mitten, Why and How the Supreme Court Should Have Decided O'Bannon v. NCAA (Antitrust Bulletin)

Matt Mitten (Marquette) suggests ways to apply the Ninth Circuit's decision in O'Bannon v. NCAA after the Supreme Court failed to grant certiorari in the case to resolve confusion about how antitrust law constrains the NCAA’s governance of intercollegiate athletics. Below is an excerpt from the abstract, which is available on SSRN here:

Despite requests by both parties, the United States Supreme Court refused to grant a writ of certiorari in O’Bannon v. NCAA, the first federal appellate court decision holding that an NCAA student-athlete eligibility rule violates section 1 of the Sherman Act. This article makes some recommendations for applying section 1 to NCAA student-athlete eligibility rules and input market restraints, which will better promote consumer welfare, protect student-athletes’ economic rights, and permit the NCAA to promote the unique features of intercollegiate sports without unwarranted judicial micromanagement.

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