Affirmative defense

Abstract: Workplace harassment has traditionally occurred within the "four walls" of the workplace. In Faragher v. City of Boca Raton and Burlington Industries. Inc. v. Ellerth the U.S. Supreme Court recognized that employers are liable under Title VII of the 1964 Civil Rights Act for harassment that is sufficiently severe or pervasive to alter the employee's work environment. The rise in social media, however, has created a new medium through which harassment occurs. Courts are just beginning to confront the issue of if and when to consider social media harassment as part of the totality of the circumstances of a Title VII hostile work environment claim. This Comment argues that to determine whether social media harassment evidence should be considered as part of the totality of the circumstances, courts should examine whether the employer derived a "substantial benefit" from the social media forum. If the employer derived a "substantial benefit" from the social media forum where the harassment occurred, then a court may logically consider the social media platform to be an extension of the employee's work environment and thus part of the totality of the circumstances. This framework is consistent with the traditional workplace harassment analysis under Title VII, recognizes evolving technology in the modem workplace, and would provide employers with guidance on how to maintain an affirmative defense to harassment allegations in the social media age. INTRODUCTION Since 1986, the U.S. Supreme Court has recognized workplace harassment as an actionable claim against an employer under Title VII of the Civil Rights Act of 1964.1 Traditionally, harassment has occurred through face-to-face verbal and physical acts in the workplace.2 The traditional notion of the workplace, however, continues to expand with changing technology and flexible schedules, which increasingly allow employees to stay connected to the work environment at numerous locations outside the physical boundaries of the office.3 In particular, the rise of social media has given employers and employees new means through which to interact with customers, colleagues, friends, and acquaintances outside the workplace.4 These same technological developments have also expanded the media through which individuals may perpetrate acts of harassment.5 With the rise in popularity of social media, harassment has moved beyond the physical walls of the workplace to the virtual workplace.6 The broadening conception of the workplace and increasing use of social media in professional settings expands potential employer liability under Title VII.7 In order for workplace harassment to be actionable under Title VII, courts have traditionally required plaintiffs to show that the harassment was sufficiently "severe or pervasive" under the totality of the circumstances to "alter the conditions of the victim's employment and create an abusive working environment."8 This is known as a hostile work environment claim. Courts have split over what type of evidence to consider under the totality of the circumstances analysis9 and they are just beginning to address claims of harassment conducted via social media.10 However, those courts that have addressed the issue have indicated that evidence of social media harassment should be included as part of the totality of the circumstances.11 This Comment argues that courts examining employer liability for harassment via social media should not abandon the traditional totality of the circumstances model but should recognize the changes wrought by evolving technology in the workplace. To determine employer liability, courts should consider whether the employer derived a "substantial benefit" from the social media through which the harassment occurred. If the employer derived a "substantial benefit" from the social media then the court may properly view the harassment as part of the employee's work environment and consider it as part of the totality of the circumstances for purposes of a hostile work environment claim. …

Abstract: This article analyzes the August 1, 2002 Torture Memorandum from the Justice Department's Office of Legal Counsel, and examines the legal ethics implications of that memorandum. The article identifies three major inaccuracies in the Torture Memorandum. First, the memorandum incorrectly defines torture so narrowly that the prohibition on torture would apply only when an individual specifically intends to impose the kind of extreme pain that would be associated with organ damage or death. Second, the memorandum inaccurately asserts that a government official indicted for torture would be able to use an affirmative defense to gain an acquittal. Third, the memorandum claims that the Constitution allows the President to authorize torture even though Congress has prohibited it. The lawyers who wrote the Torture Memorandum appear to have violated two rules of professional ethics: Rule 2.1 requiring lawyers to be candid when they provide clients with legal advice, and Rule 1.4 requiring lawyers to adequately inform their clients. By investigating and - if appropriate - disciplining these lawyers, state bar authorities can hold accountable the lawyers who helped establish the Bush Administration policy of torturing detainees.

Abstract: The orphan works problem in copyright occurs when a scholar, artist, or other creator wishes to use part of an existing work in her own work but cannot find the existing work's owner in order to ask permission. Today many works go unused for fear of litigation. This has become such a serious problem that the Copyright Office recently concluded a proceeding to investigate possible solutions. This paper explains the full extent of the orphan works problem and proposes a novel solution that is practical. We also examine and critique other leading proposed solutions that we conclude are unworkable. We propose a new orphan works affirmative defense to infringement actions similar to the fair use affirmative defense. If, after a reasonable search in good faith, no copyright holder for a work is found, the work may be used without the user being subject to liability. As with the fair use statute, there should be a codified non-exclusive list of factors that a court will consider in determining whether the user-defendant carried out a reasonable search in good faith.

Abstract: Should antitrust law ever sanction the accumulation of market power or permit other restraints of trade if such conduct would increase social welfare? This is the challenge raised by intramarket second-best tradeoffs. In the presence of multiple market failures, it is conceivable that mergers or other restraints traditionally viewed as anti-competitive may be welfare-enhancing. A social planner, given the mandate of maximizing total welfare, would permit such restraints. Could an antitrust judge come to the same result under a defensible application (or extension) of existing legal doctrine? This question highlights the tensions between an antitrust policy dedicated to preserving "competition" and an antitrust policy dedicated to maximizing total welfare. This Article argues (1) that antitrust law should recognize a defense for private acts that restrain "competition" under the traditional antitrust analysis but advance total welfare, (2) that courts are competent to administer this defense, and (3) that the framework of existing antitrust statutes permits courts to recognize this defense. I suggest that to rebut a finding of illegality based upon a traditional presumption of anticompetitive effects, defendants should have to establish (1) that the challenged conduct is responsive to an identifiable market failure; (2) that the conduct produces a net increase in total welfare (static efficiency); (3) that the conduct will not substantially impair subsequent efforts to address the underlying market failure (dynamic efficiency); and (4) that there is not a less restrictive course of action consistent with the antitrust laws that could achieve the same static efficiency gain. This defense presupposes a total welfare standard of analysis. Part I examines the theory of intramarket second-best analysis and outlines the parameters of the proposed defense. Part II examines the technical viability of the affirmative defense. Part III explores whether second-best tradeoffs and the total welfare standard underlying them can be reconciled with contemporary understandings of antitrust law and the institutional role of the courts.