VOLUME 165 ISSUE 2 JANUARY 2017

This Article follows the path of a hypothetical college football player with aspirations to play in the National Football League, explaining from a legal and ethical perspective the health and performance evaluations he will likely face throughout his career. Some of these evaluations are commonplace and familiar, while others are more futuristic—and potentially of unproven value. How much information about themselves should aspiring and current professional players be expected to provide in the employment context? What are the current legal standards for employers collecting and acting on an individual’s health‐ and performance‐related information? Drawing on disability law, privacy law, and the law governing genetic testing, this Article seeks to answer those questions, as well as to provide recommendations to better protect the health and privacy of professional football players.

The upshot of our analysis is that it appears that some of the existing evaluations of players, both at the NFL Scouting Combine (Combine) and once drafted and playing for a club, seem to violate existing federal employment discrimination laws. Specifically, (1) the medical examinations at the Combine potentially violate the Americans with Disabilities Act’s (ADA) prohibitions on pre‐employment medical exams; (2) post‐offer medical examinations that are made public potentially violate the ADA’s confidentiality provisions; (3) post‐offer medical examinations that reveal a disability and result in discrimination—e.g., the rescission of a contract offer—potentially violate the ADA provided the player can still perform the essential job functions; (4) Combine medical examinations that include a request for a player’s family medical history potentially violate the Genetic Information Nondiscrimination Act (GINA); and (5) the preseason physical’s requirement that a player disclose his family medical history potentially violates GINA.

We believe all employers—including the NFL and its clubs—should comply fully with the current law. To that end, our recommendations center around four “C”s: compliance, clarity, circumvention, and changes to existing statutory schemes as applied to the NFL (and perhaps other professional sports).

Imagine you purchase a new book from Amazon. You visit Amazon.com, find a book that looks promising, click the familiar Buy Now button, wait a mere two days for Amazon Prime delivery, and promptly place that new volume on your bookshelf, waiting for the perfect rainy day to crack it open. The next morning, you wake up to find a book‐sized gap on your shelf. Your book has disappeared. Just then, you receive an email from Amazon customer service explaining that—at the copyright holder’s request—the book has been recalled.

Amazon informs you that it dispatched a drone to your home to silently and carefully retrieve the book while you slept in order to avoid any inconvenience. But not to worry, Amazon reassures you, your account has already been credited with a refund.

Most consumers would be outraged at such an intrusion, not only because of the physical violation it entails, but also because it contravenes some basic assumptions about the nature of personal property rights. When we buy a book, we own it; it is our property. And one right traditionally associated with personal property is the ability to keep the things you own for as long as you choose. They cannot be taken from you without your consent, certainly not by private actors for their own benefit. Yet something very similar happens online when consumers buy a product.

This Article presents the results of a study that demonstrates that a sizable percentage of consumers is misled with respect to the rights they acquire when they “buy” digital media goods. They mistakenly believe they can keep those goods permanently, lend them to friends and family, give them as gifts, leave them in their wills, resell them, and use them on their devices of choice.

Not only are consumers misled, they are misled about ownership rights that are important to them. A sizable percentage of consumers express a desire for those rights and many say they are willing to pay more to preserve them. Importantly for retailers and copyright holders, respondents in our study indicated that they would turn to streaming services and BitTorrent if they were unable to engage in the uses typically associated with personal property ownership.

For much of the nineteenth and early twentieth centuries, the nondelegation doctrine served as a robust check on governmental expansion. Then, during the New Deal revolution, the Supreme Court reined in the doctrine, thereby paving the way for the rise of the modern administrative state. This story is one we all know well. It is taught in every constitutional law class and has been endorsed by constitutional law scholars since the 1930s. In this Article, we are the first to challenge this narrative.

Our investigation draws upon an original dataset we compiled that includes every federal and state nondelegation challenge before 1940—more than two thousand cases in total. In reviewing these judicial decisions, we find that the nondelegation doctrine never actually constrained expansive delegations of power. Ultimately, our analysis reveals that the traditional narrative behind the nondelegation doctrine is nothing more than a myth.