Law Review Student Note Winners

On October 21, third-year law students Micah Jost and Aaron Sims presented their winning law review notes during the annual event recognizing the best student articles produced by Washington and Lee Law Review staff writers.

Jost, winner of the Roy L. Steinheimer Law Review Award, presented “Independent Contractors, Employees, and Entrepreneurialism under the National Labor Relations Act: A Worker-by-Worker Approach.”  Jost graduated from Goshen College and is a Senior Articles Editor for Volume 68 of the Law Review.

Jost’s note discusses the often blurry line in labor and employment law between employees, who enjoy a variety of basic legal rights and protections on the job, and independent contractors, whom the law excludes from such coverage.  It focuses on the failure of American labor law to recognize that many workers classified as independent contractors deserve the right to organize and collectively bargain with their employers.  In particular, it examines a recent case in which the United States Court of Appeals for the District of Columbia Circuit concluded that FedEx Home Delivery drivers were independent contractors lacking the right to join a union under the National Labor Relations Act.  Jost critiques the D.C. Circuit’s decision to focus on the drivers’ “entrepreneurial potential,” and argues that a worker-by-worker examination of each individual’s actual exercise of entrepreneurial rights could provide a more reasonable distinction between statutory employees and contractors who are, in some meaningful way, independent.

Sims, winner of the Washington and Lee Law Council Law Review Award, presented “SIGTARP and the Executive-Legislative Clash: Confronting a Bowsher Issue with an Eye toward Preserving the Separation of Powers during Future Crisis Legislation.” Sims graduated from George Wythe University and is a Managing Editor for Volume 68 of the Law Review.

Sims’s note explores the constitutionality of the Special Inspector General for the Troubled Asset Relief Program (SIGTARP), an office created by the Emergency Economic Stabilization Act of 2008.  SIGTARP is the government watchdog commissioned to oversee the Treasury Department’s management of the TARP program, a $700 billion economic bailout fund.  The statute fashions a relationship in which SIGTARP recommends to Treasury certain actions regarding Treasury’s management of TARP.  His note argues that the statute’s language requires Treasury to implement SIGTARP’s recommendations unless they are both unnecessary and inappropriate.  It concludes that this dynamic violates the separation of powers.  Although the statute lodges in the President the power to remove SIGTARP, Congress retains practically all remaining control over SIGTARP.  While Supreme Court precedent stands for the proposition that presidential retention of the removal power neutralizes congressional-presidential separation of powers concerns, the note argues that this precedent is inapplicable to the SIGTARP dynamic because SIGTARP (unlike officers in the Supreme Court’s prior separation of powers cases) wields the power to shape policy and to commandeer the entire executive machine by submitting to Treasury recommendations that must be implemented unless they are both unnecessary and inappropriate.  Sims concludes by examining the critical importance of preserving the separation of powers, the central role that the separation of powers plays in America’s unique form of government, and how the people are the primary guardians of the separation of powers.

Congratulations to both Jost and Sims for their impressive work.