Fair Labor Standards Act Preemption of State Wage-and-Hour Law Claims

In recent years, many states passed constitutional amendments prohibiting modern day slavery in the form of forced prison labor allowed by the Thirteenth Amendment. However, the state amendments' text alone has not ended prison slavery in those states. This Article examines why. It grounds its discussion in the history of American slavery after the Civil War as well as the various attempts of legislation, litigation, and constitutional amendments to dismantle forced prison labor. Drawing on this discussion, it suggests how organizers might craft these amendments and how judges and lawyers should interpret them. It argues that, ultimately, amending constitutional text alone is not enough. To achieve their goals amendments must work in tandem with litigation, governmental structural reform, and the inevitable political battles that arise over the shape of the criminal legal system.

In today’s competitive global economy, U.S. companies upholding strict labor and human rights standards increasingly face unfair competition from foreign firms that exploit forced labor. In this Essay, we argue that this exploitation is not just a grave human rights crisis but also a serious market distortion that disadvantages ethical businesses in the United States and elsewhere.
This Essay outlines a strategic approach to confront this unfairly uneven playing field. Beyond simply deploying the existing legal tools, we propose a unified federal enforcement strategy and smarter trade agreements with enforceable labor standards. We also propose affirmative incentives, including procurement preferences and legal safe harbors, for companies that invest in ethical sourcing. The final component to the integrated strategy we propose is greater investment in traceability technologies and public-private partnerships to identify and root out forced labor deep within supply chains. Ultimately, we outline a forward-looking blueprint to ensure fair and competitive markets for U.S. businesses, ones that reward integrity and drive a global race to the top in labor practices. Economic competitiveness and human dignity, we argue, must be pursued together, not treated as competing priorities.

The Constitution’s Double Jeopardy Clause allows successive criminal prosecutions for the same conduct so long as they are pursued by separate sovereigns (such as two different states). This Case Note examines Illinois law to argue that state statutes are a useful, though imperfect, means of addressing the dual sovereignty doctrine. It argues further that the details of statutory language are highly consequential to whether states can scale back dual sovereignty in practice.