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WHEN POISON IS ON THE MENU: PROPOSING THE ADOPTION OF IRELAND’S STRICTER ALLERGEN REGULATIONS IN AMERICA’S FOOD ESTABLISHMENTS
Full text linkIn the modern era, a growing number of children and adults have been diagnosed with deadly food allergies. For the approximately 33 million Americans who have at least one food allergy, restaurants, aside from the home, are the most likely place where deadly reactions could occur. In order to adapt to this expanding and sensitive population, the federal government should pass legislation that protects these citizens from suffering a preventable, untimely death. Luckily, the legislators of the European Union, and specifically Ireland, have already put food labeling legislation in place that serves to protect those with food allergies. This Irish legislation requires restaurants to label all the major food allergens that appear in each menu item so that the restaurant patron is immediately aware of which dishes are safe to consume. This legislation takes the pressure off restaurant workers who may lack sufficient allergy training or who simply make mistakes. The Irish labeling law creates further safeguards against unnecessary allergic reactions in a restaurant setting while ensuring that diners with food allergies have all the information at their fingertips to protect themselves from a potential reaction. Drawing inspiration from the Irish allergy laws, the United States should require all restaurants to label major food allergens on their menus in order to protect the increasing population of those with food allergies
UNVEILING THE UNDERBELLY OF ARTIFICIAL INTELLIGENCE: THE INADEQUACIES OF THE LEGAL SYSTEM WITH REGARD TO VICTIMS OF NONCONSENSUAL SEXUAL DEEPFAKES
Full text linkArtificial intelligence-powered deepfake technology has ushered a new era of digital sexual abuse, allowing for the seamless fabrication of explicit images that violate bodily autonomy with alarming realism. With little more than a photograph scraped from social media, individuals can use AI tools to fabricate hyper-realistic nude images and pornographic videos of people without their consent. These nonconsensual sexual deepfakes are rapidly spreading online, often going viral before victims are even aware of their existence. The technology can affect anyone, but women and girls remain disproportionately targeted. Recent incidents involving minors highlight both the reach and severity of this harm. Despite the emotional, reputational, and psychological toll on victims, the current legal framework offers few avenues for redress. Traditional tort claims such as defamation or intentional infliction of emotional distress are often ill-suited to address the uniquely digital and anonymous nature of deepfake abuse. In response, many states have begun enacting legislation to criminalize or regulate deepfake content. However, the patchwork of state-level approaches leaves significant gaps in protection. Congress has introduced several bills aimed at regulating the creation and distribution of deepfakes, and very recently passed the first federal law to criminalize nonconsensual sexual deepfakes. This Note argues that a more effective path forward lies in targeting the technology’s source; specifically, a federal provision imposing civil strict liability on developers of software designed primarily to produce sexually explicit deepfakes. By focusing on the creators of these tools–rather than attempting to police individual users or internet platforms–this approach addresses a key enforcement challenge while avoiding entanglements with the First Amendment. In doing so, it offers a constitutionally sound and victim-centered framework for confronting the growing threat of nonconsensual sexual deepfakes
A Quarter Century After the Products Liability Restatement: Reflections
Full text linkA quarter century has passed since the adoption by the American Law Institute of the Products Liability Restatement. It is time to reflect on whether it has influenced the courts. At the time of its adoption there was considerable controversy with regard to several sections. Some sections were not controversial. There was little disagreement that a plaintiff may draw a res ipsa like inference of product defect. Nor was there disagreement that if a product was in violation of statute that the product was defective per se. Two sections were highly controversial. The Restatement held that a product could not be held to be defectively designed unless a plaintiff was able to prove that there was a reasonable alternative design available that would have avoided plaintiff\u27s harm. The opponents to this section argued that if a product disappointed consumer expectations it was defective. With regard to drug design the Restatement held that a drug could not be held to be defectively designed if the drug would have been prescribed by a physician to any class of persons. This article demonstrates that the reasonable alternative design standard for most products has been adopted by a majority of jurisdictions. Those jurisdictions that allow recovery based on consumer expectations do so only in a very narrow group of cases. Furthermore, even jurisdictions that purport to adopt the consumer expectations standard plaintiffs invariably prove a reasonable alternative design. As to the defective drug design the case law is mixed but scholars and commentators agree with the Restatement test. The article reviews many sections of the Restatement and finds overwhelming approval of the project
The Economic Rhetoric of Carbon Pricing
Full text linkEconomists overwhelmingly prefer the carbon pricing instruments of carbon taxes and cap-and-trade programs as the most cost-effective way to reduce greenhouse gases and combat climate change. By contrast, US lawmakers have largely eschewed carbon pricing, and legal scholars have mixed views about implementing it. In order for legal scholars to better understand economic studies on carbon pricing and incorporate those studies into their own climate change scholarship, this Article turns to the rhetoric of economics. Economists view problems like climate change through the metaphor of the market, so they embrace carbon pricing because it is a market-based approach that corrects the market failure of GHG emissions most efficiently. One potential downside is that the dominance of the market metaphor and preference for mathematical models and numeric data might blind economists to questions about the distribution of carbon pricing’s costs and benefits, which may be regressive and thus result in an unjust transition. Economic discourse is permeated with other tropes like metonymy and irony, however. For example, some economic studies have made abstractions about wealth more concrete by showing how carbon pricing is far less regressive when households are categorized by consumption rather than income. Further, the body of economic studies offers dominant, counter, and new narratives that should be considered together to create a richer understanding of carbon pricing’s impacts. These economic studies show that carbon pricing is not only efficient but also not as regressive as commonly assumed—and may even be progressive, particularly since carbon pricing laws can be structured to recycle revenues in a way that balances efficiency and equity. The rhetorical analysis in this Article therefore provides insight into the disciplinary practices of economics, aids legal scholars in assessing economic studies, justifies reading multiple (even conflicting) economic studies together, and shows how economic studies support making carbon pricing a more integral component of climate change law and policy
The Extraordinary Extension of the Video Privacy Protection Act: Why the “Ordinary Course of Business” of an Analog Era is Anything but Ordinary in the Digital World
Full text linkIn the last dozen years, a wide range of companies—from streaming platforms to consumer goods brands to nonprofits—have been the target of lawsuits under an idiosyncratic, outdated law: the Video Privacy Protection Act of 1988 (VPPA). The VPPA focuses only on consumers’ privacy related to video content; it prohibits a party that has data on a consumer’s video viewing history, along with personally identifiable information about that consumer, from disclosing that information without the consumer’s consent. While the VPPA did not get much attention in court until recently, in the past decade, the volume of VPPA-related claims has exploded. This Note argues that the VPPA’s second life has overextended the law not only beyond Congress’s initial intent but also without due consideration for the vastly different business models and privacy threats relevant in the digital era. The Note focuses on the ordinary course of business (OCB) exception in the VPPA and courts’ lack of attention to this lynchpin term in the statute. Further, this Note examines modern companies’ business models to determine how disclosure of consumers’ data to certain third parties should be considered within their OCB. Finally, this Note evaluates possible solutions for how Congress should modify the law, as well as how courts should modernize their interpretation of OCB given the current offerings available to consumers for consuming video content, before ultimately proposing the creation of a federal privacy statute as the best solution
The Case For Abolishing the Civil Character-Evidence Rule
Full text linkThe Federal Rules of Evidence were enacted fifty years ago. The Advisory Committee charged with drafting the rules successfully reformed a good number of common-law rules and failed in its attempts to reform others. But it did not even attempt significant reform of one of the most troublesome rules—the character-evidence rule. Indeed, it declined to seriously consider even a very modest proposal to reform the way the character-evidence rule applies in civil cases. Those espousing change, it declared, “have not met the burden of persuasion.” This Article takes up that challenge. I argue that Rule 404’s categorical exclusion of character evidence is not justified in civil cases. Both the historical origins of the character-evidence rule and the contemporary justifications offered in its support are infused with concerns about criminal defendants. Both largely ignore differences between criminal and civil litigation. An examination of the Federal Rules’ other relevancy provisions proves the civil character-evidence rule to be an outlier. And a survey of the case law shows that the rule works far too often to exclude evidence that jurors should be allowed to consider. More than modest change is needed; the civil character-evidence rule should be abolished
Funding Repression: How the EU Migration Agreements with Libya and Tunisia Circumvent Non-Refoulement and Enable Human Rights Violations
Full text linkIn 2023, the European Union and Tunisia entered into a Memorandum of Understanding, which outlined cooperation between the parties on several issues, including migration and mobility. Consistent with the European Union’s broader externalization agenda, the Memorandum of Understanding primarily allocates monetary and technical support to Tunisia and its authorities for migration management. In particular, Tunisian authorities are enabled to patrol the coast and intercept migrants and refugees attempting to irregularly migrate from North Africa to Europe across the Mediterranean Sea. The European Union sponsored a similar Memorandum of Understanding between Italy and Libya in 2017. Critics have widely denounced the agreement between Italy and Libya, as Libyan authorities have been found to subject migrants and refugees to severe human rights violations once intercepted. This Note compares the significant issues identified in the Italy-Libya agreement—undermines human rights protections, diminishes accountability and transparency, and encourages instability and an imbalance of power—to the EU-Tunisia agreement, finding that the European Union has failed to implement meaningful reform in accordance with its obligations under international and European law. Rather, this Note argues that the European Union perpetuates human rights violations by funding Tunisian security personnel. Moreover, Tunisia and the European Union violate the principle of non-refoulement in their execution of the agreement. Accordingly, the agreement between the European Union and Tunisia must be challenged and retracted. Recognizing the difficulties in ensuring EU responsibility under current European Law, this Note asserts that the broader recognition of the Draft Articles on the Responsibility of International Organizations is needed within the European Union’s legal framework. This Note also contends that if cooperation between the European Union and Tunisia continues, the agreement must be amended to incorporate safeguards for human rights, including a cessation clause
Show Me the Money: Approaches to Anti-Money Laundering Compliance for Digital Assets
Full text linkThe European Union’s Markets in Crypto-Assets Regulation (“MiCA”) created a harmonized framework to regulate digital asset issuance and services that were not already covered by existing regulations. Notably, MiCA requires virtual asset providers to adhere to the Financial Action Task Force Recommendation 16 (“FATF”), also known as the Travel Rule. Though the Travel Rule has existed for almost 20 years, its application to crypto asset transfers is entirely new. The purpose of the Travel Rule is to detect and prevent money laundering and terrorist financing, but its application to cryptocurrency wallet transactions is criticized for being overly burdensome and invasive due to the enhanced diligence it requires. Comparatively, the United States has been reluctant to issue any new regulations specific to digital assets. However, the US Department of Treasury’s August 2024 semiannual agenda included an item that would expand the Bank Secrecy Act’s (“BSA”) definition of “money” to include digital assets. This proposed expansion of the definition would make clear that the existing rules under the BSA apply to digital asset transactions because it would now reference cryptocurrency. The inclusion of digital assets in the term “money” is also important because it would act as anti-money laundering (“AML”) legislation for digital assets. Presently, the US does not have AML legislation specifically for the digital asset space. Thus, the agenda item indicates that the US may now be looking to implement legislation specific to digital asset AML compliance. This Note argues that though the application of MiCA and the Travel Rule are meaningful steps to clarify what rules apply to digital assets, these regulations do not provide a workable AML compliance framework because of the low transaction threshold amount. Instead, this Note proposes that the US should adopt a rule more like the UK’s flexible approach to digital asset AML compliance. This Note suggests that the UK’s approach would allow for more effective compliance because it requires enhanced diligence only when illicit activity is detected whereas the Travel Rule requires it for any transaction above a threshold amount
The Radical Potential of Consumer Financial Protection
Full text linkThis Article offers a novel retheorization of consumer financial protection that surfaces its radical potential. That retheorization is motivated by two developments. The first is the rise of debtor movements over the last decade demanding the abolition or cancellation of debt, such as the recent national campaigns against student debt and medical debt. The second is an emerging view this Article identifies in sociological and legal scholarship. Recent scholarship understands consumer financial protection as in tension with the radical ambitions of debtor movements and neoliberal in its orientation: it operates to sustain market logics as opposed to contest them.
This Article’s retheorization undermines this second, pessimistic view. It begins by recasting consumer financial protection as a response to market domination facilitated by the legal and institutional design of our financial system. It then traces the various legal and institutional forms this response took over the course of the twentieth century. Retracing this history through this lens reveals that consumer financial protection has functioned both to affirm and contest the logic of our financial system. Consumer financial protection’s role as a counter logic is sharpest when it has an institutional presence in financial market governance and leverages this presence to reallocate governing power and redistribute burdens in financial markets. And its role is weakest when it has little institutional presence in market governance and seeks to merely manage the costs of the financial system at its margins.
This Article’s core argument is that consumer financial protection is justified and best functions as a counterweight to our regressive and antidemocratic institutional arrangements around money and banking. Thus, if we want to develop countervailing power in financial markets, it is sensible to grant consumer agencies broad powers to contest institutional actors that facilitate domination rather than distributing this authority. In our current political moment, this Article’s retheorization serves primarily as a partial defense of what was rather than a suggestion of what can be. But I conclude by considering how the themes surfaced in this Article might serve as the foundation for a reconstruction of what will inevitably be a broken future regulatory framework in consumer finance
The Fall from Standing: How the Courts Have Diverged From Financial Standing Standards
Full text linkThe Fair Credit Reporting Act (FCRA) and the Fair Debt Collection Practices Act (FDCPA) enable consumers to sue credit reporting and debt collection agencies for engaging in abusive practices such as reporting false information or continuous harassment. In order for a lawsuit to be heard, consumers must have constitutional standing, and thus, must have suffered a particularized and concrete injury. However, it may be difficult for consumers to allege a concrete injury given that credit and debt issues often result in harm that is intangible and difficult to categorize. While the Supreme Court has classified financial, intangible injuries as concrete in Spokeo, LLC v. Robins and TransUnion LLC v. Ramirez (collectively Spokeo-TransUnion), its interpretation has widely differed among the lower courts. These varying interpretations of Spokeo-TransUnion suggest that a new standard of categorizing concrete injuries is needed to ensure consistent rulings and efficiency. This Note reviews the lower courts’ application of Spokeo-TransUnion and analyzes their respective advantages and disadvantages in order to propose a new solution: Spokeo-TransUnion 2.0. Under this solution, an injury would be considered concrete if (1) it results in a similar experience of harm that is traditionally recognized, (2) it meets at least one element of that traditionally recognized harm, and (3) the harm was one intended to be protected by Congress. Spokeo-TransUnion 2.0 would honor the constitutional ideas of federalism, provide consumers with fair opportunity for redress, and limit potential abuse of the judicial system