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Replacement Reply Brief for Plaintiff-Appellant Mona Salcida Murillo
No full textDefendants’ response brief contains a laundry list of all the ways they think Mona Murillo fell short in trying to vindicate her rights to be free from sex discrimination and retaliation while incarcerated at Salinas Valley State Prison. They devote page after page to cataloging the regulations that govern her claims, describing the intricacies of the three-tiered grievance system, and recounting her repeated efforts to navigate that morass. And from all of that, they draw the conclusion that Murillo’s lawsuit should be thrown out of court.
In the process, Defendants take the exhaustion requirement to an extreme that even the Prison Litigation Reform Act (“PLRA”) does not contemplate. The PLRA certainly was not meant to make it easier for prisoners to sue. But nor was it meant to close the courthouse doors to a plaintiff who has done all that can reasonably be expected of her. See Ross v. Blake, 578 U.S. 632, 644 (2016) (exhaustion requirement does not demand a plaintiff to pursue a mechanism for relief that is “so opaque” that “no ordinary prisoner can discern or navigate it”). Indeed, a core purpose of the PLRA’s exhaustion requirement is to encourage prisons to address grievances out of court. Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010). That system breaks down when a prison fails to “meaningfully consider[]” the claims that a prisoner puts before it. Id.
That is what has happened here. As the response brief illustrates, Murillo has been engaged in a years-long dogged effort to seek remedies for unconstitutional discrimination and retaliation. She has done everything in her power to raise those claims within the prison. Nowhere have Defendants made any sort of colorable argument that she has abused the process or tried to sidestep its requirements in hopes of taking the fast track to federal court. Nor can they credibly contend that they lacked reasonable notice of the harms she suffered. Yet still, after all this time, Murillo has never had her discrimination or retaliation claims against Defendants-Appellees adjudicated on the merits. And she has been denied any and all relief. In short, this is not a case where penalizing Murillo’s failure to exhaust is consistent with the balance Congress struck in the PLRA. Her failure to exhaust must be excused, and reversal is required
The Great Scrape: The Clash Between Scraping and Privacy
Full text linkArtificial intelligence (AI) systems depend on massive quantities of data, often gathered by “scraping”—the automated extraction of large amounts of data from the internet. A great deal of scraped data contains people’s personal information. This personal data provides the grist for AI tools such as facial recognition, deep fakes, and generative AI. Although scraping enables web searching, archiving of records, and meaningful scientific research, scraping for AI can also be objectionable and even harmful to individuals and society.
Organizations are scraping at an escalating pace and scale, even though many privacy laws are seemingly incongruous with the practice. In this Article, we contend that scraping must undergo a serious reckoning with privacy law. Scraping violates nearly all of the key principles of privacy laws, including fairness, individual rights and control, transparency, consent, purpose specification and secondary use restrictions, data minimization, onward transfer, and data security. Scraping ignores the data protection laws built around these requirements.
Scraping has evaded a reckoning with privacy law largely because scrapers act as if all publicly available data were free for the taking. But the public availability of scraped data shouldn’t give scrapers a free pass. Privacy law regularly protects publicly available data, and privacy principles are implicated even when personal data is accessible to others
Gig Work at What Cost? Exploring Privacy Risks of Gig Work Platform Participation in the U.S.
Full text linkIn recent years, gig work platforms have gained popularity as a way for individuals to earn money; as of 2021, 16% of Americans have at some point earned money from such platforms. Despite their popularity and their history of unfair data collection practices and worker safety, little is known about the data collected from workers (and users) by gig platforms and about the privacy dark pattern designs present in their apps.
This paper presents an empirical measurement of 16 gig work platforms\u27 data practices in the U.S. We analyze what data is collected by these platforms, and how it is shared and used. Finally, we consider how these practices constitute privacy dark patterns. To that end, we develop a novel combination of methods to address gig-worker-specific challenges in experimentation and data collection, enabling the largest in-depth study of such platforms to date. We find extensive data collection and sharing with 60 third parties—including sharing reversible hashes of worker Social Security Numbers (SSNs)—along with dark patterns that subject workers to greater privacy risk and opportunistically use collected data to nag workers in off-platform messages. We conclude this paper with proposed interdisciplinary mitigations for improving gig worker privacy protections. After we disclosed our SSN-related findings to affected platforms, the platforms confirmed that the issue had been mitigated. This is consistent with our independent audit of the affected platforms. Analysis code and redacted datasets will be made available to those who wish to reproduce our findings
The antimicrobial resistance cube: a framework for identifying policy gaps and driving action
No full textWHO has summarised its commitment to Universal Health Coverage (UHC) with the UHC cube diagram,1,2 a globally recognised visual representation of policy choices to promote UHC and prioritise investments in health-care interventions. Inspired by the concept of the UHC cube, we propose a streamlined framework for policy makers, academics, and civil society to examine a country’s response to antimicrobial resistance (AMR)— the AMR cube. The AMR cube integrates three essential dimensions: One Health contexts, interventions, and resources, each representing a critical aspect of combating AMR
Disappearing Data at the U.S. Federal Government
No full textHealth data hosted by the U.S. federal government have been disappearing. According to our analysis, between January 21 and February 11, 2025, the Centers for Disease Control and Prevention (CDC) removed 203 datasets (13% of its online datasets, a reduction from 1519 to 1316). The situation is dynamic; various datasets have been removed, restored, manipulated, or not posted as planned.
A dataset with county-level information on mortality associated with heart disease, for example, which is used for research on demographic and geographic determinants of heart disease, was unavailable starting on January 31 and was restored on February 10, with the term “gender” replaced with “sex.”1 The Social Vulnerability Index, which includes information on race and gender and is used to predict susceptibility to natural disasters, was unavailable beginning on January 31 and was restored only after a February 11 court order. The CDC reportedly stopped giving researchers access to the Pregnancy Risk Assessment Monitoring System, a maternal and infant health database that is widely used to study maternal mortality, and ceased collecting new data for the program.2 The Trump administration hasn’t provided definitive explanations for these changes, but many of them may reflect agency responses to its directive to remove information “that promote[s] or otherwise inculcate[s] gender ideology.”
The consequences of these changes are expected to be far-reaching. Without access to accurate and timely data, scientists’ work will become more difficult, and we will understand less about the world. Clinicians and public health practitioners will need to make the same challenging decisions as they otherwise would have, but with less information. Public health experts will have more trouble identifying trends in disease outbreaks or overdose deaths and assessing or advocating for various interventions. The problem isn’t only federal: state and local public health agencies often rely on federal data or work with federal agencies and will be similarly affected.
Data suppression can directly support policy goals. The 1996 Dickey Amendment and the 2003 Tiahrt Amendments, for example, blocked data sharing and federal funding for gun-violence studies, with what public health officials believed was an aim of scaring agencies away from collecting data that could provide evidence of harms associated with gun ownership.3 As we discuss below, removing government databases can also transfer power from public to private entities, strengthen monopolies, hobble innovation, and promote autocracy
Foundations for Platform Liability
Full text linkFrom spreading misinformation to selling deadly products, bad actors use technology platforms to their advantage while causing devastating harms to privacy, health, and even democracy. Despite their central role in enabling these bad actors, the platforms almost entirely escape liability. This legal immunity is purportedly grounded in economics. From the beginning, courts and legislatures feared that liability would chill innovation, growth, and user access. They also speculated that platforms have sufficient market incentives to voluntarily police bad actors, making liability unnecessary.
Whereas many scholars have argued that platform immunity is blind to justice, this Article shows that it is also blind to economics. We challenge the fundamental precepts that market incentives suffice and that liability inevitably brings detrimental chilling effects. By tracing the legal origins of platform immunity and synthesizing decades of legal and economic research, it shows how judges and lawmakers have consistently applied shallow or misguided economic reasoning. Their misconceptions rely on an outdated depiction of economics and a narrow view of efficiency. Once updated for key factors such as platforms’ financial incentives to allow bad actors and the feasibility of platforms deploying automated monitoring technologies to prevent harms, economics fails to justify a broad shield against liability.
Instead, economics offers a promising roadmap for holding platforms accountable for their harms while preserving their social benefits. Designing a better liability framework is increasingly important as advances in artificial intelligence accelerate technology’s presence in our everyday lives, creating unpredictable opportunities for bad actors to weaponize platforms. Anchoring platform liability more effectively in economic reasoning will help create a more adaptive legal framework that keeps pace with the future
Book Review: BigLaw\u27s Race Problem
Full text linkEver since the 1970s when BigLaw firms began to hire Black lawyers into their associate ranks, these firms have wrestled with problems in both recruiting and retaining Black associates. During the ensuing decades, BigLaw firms have minimally increased the low numbers of Black attorneys who have become partners, particularly equity partners, within their organizations. Numerous scholars have explored how racial bias and discrimination, both within BigLaw firms and greater society, have contributed to such failures in the recruitment, retention, and promotion of Black lawyers. In his new book The Black Ceiling: How Race Still Matters in the Elite Workplace, Professor Kevin Woodson, a Black law professor and sociologist who once worked as an associate at a large, elite law firm, offers his own theory about how “racial discomfort,” and specifically “social alienation” and “stigma anxiety” related to race, have functioned together to create and maintain racial disparities in BigLaw attrition and partnership. This Book Review examines Woodson’s insights against the backdrop of recent high-profile employment discrimination litigation embroiling BigLaw firms across the country, focusing on one recent case, Cardwell v. Davis Polk & Wardwell LLP, in which the plaintiff, a Black former associate, alleged he had been fired in retaliation for raising concerns about racial discrimination at his law firm. The Book Review extends Woodson’s research by identifying and assessing innovative firm- and industry-wide policies that can mitigate the impact of racial discomfort on Black associates’ prospects for thriving in and attaining partnership at BigLaw firms
What patents on AI-derived drugs reveal
No full textProponents of the use of artificial intelligence (AI) in drug discovery predict that it is likely to make drug discovery and development faster and cheaper, particularly in preclinical stages before patents are filed (1). But AI use may also create tendencies to file “compound” patents on molecules that disclose little evidence of real-world testing, exacerbating an issue already of concern in more traditional (even if also computer-aided) drug development and patenting. Our preliminary analyses of an original dataset of compound patents on small-molecule drugs suggest that, compared with more traditional drug developers, “AI-native” developers perform less in vivo, in-depth testing before patenting. In light of the potential for such early patenting to dampen overall drug research and development, it is worth considering policies that encourage disclosure of more evidence for securing a patent and provide incentives for research on disclosed but unpatented structures
Reassessing Corporate Philanthropy from a Tax Perspective
No full textU.S. corporations make and deduct charitable contributions in excess of $20 billion annually. This Article reassesses corporate philanthropy from a tax perspective, asking first whether the federal tax subsidy for corporate philanthropy is greater than the subsidy for the alternative stakeholder philanthropy, as some commentators have previously found. The answer: it depends. The relative degree of subsidy depends on corporate and individual tax rates, obviously, but also on the incidence of corporate philanthropy, i.e., who bears the cost, which is generally unclear, as well as other details, such as whether individual stakeholders itemize deductions. At current tax rates, however, any outsized subsidies for corporate philanthropy result to a large degree from the constriction in itemizing that followed from the 2017 Tax Cuts and Jobs Act). And many would view the effective restoration of individual deductions for charitable contributions as a positive feature of corporate philanthropy rather than as a bug. Moreover, from a policy perspective, corporate philanthropy provides numerous advantages over individual philanthropy that have not been discussed or emphasized in the literature. Corporate philanthropy mitigates the inequitable “upside-down” effect of the individual deduction for philanthropy that disproportionately favors charities supported by high-income taxpayers and may mitigate the windfall arising from stakeholder contributions of appreciated securities. Corporate philanthropy also is highly responsive to tax incentives, often provides utility to multiple stakeholders, and even transfers a portion of the cost of U.S. philanthropy to non-U.S. stakeholders. There is, in short, much to like about corporate philanthropy from a tax (and non-tax) policy perspective
To Save Democracy from Juristocracy: J.B. Thayer and Congressional Power After the Civil War
Full text linkAs many Americans once again worry that their democracy is hostage to judicial power, this Article is an archival reconstruction of how famed Harvard law professor James Bradley Thayer set out on a mission to stave off the syndrome before it stuck—though he failed in the end.
The Article shows how Thayer (1831–1902) arrived at his epoch-making theory of judicial deference to safeguard Congress’s power after the democratic revolutions of the Civil War and Reconstruction. Indeed, he hoped to see America transformed in the direction of British legislative supremacy, in which Parliament—and not the courts—reigned supreme. Scandalized by growing ventures to weaponize the federal judiciary so as to preempt the newly federalized American democracy, Thayer bet on something new in global history: mass democracy on a national scale, understood as an experiment in collective learning. The Article thereby provides a new periodization and transatlantic contextualization of the struggles over judicial fiat routinely associated with the Supreme Court’s defense of laissez-faire in the early twentieth century.
And yet, as this Article emphasizes, Thayer failed in the long run. His democratizing fix, judicial self-restraint under the “clear error standard”—which this Article shows had the same English roots as his democratic and parliamentary theory—has tragically misled reform. It embroiled Americans in a neverending debate on judicial “restraint,” even as Thayer proposed a doctrinal prescription encouraging judges to limit their power themselves. He therefore postponed an institutional remedy for an institutional syndrome. For this reason, his mission, in spite of its partial implementation after his death, now has to be rescued in its own right. Judicial self-restraint has not prevented the continuation and even the intensification of the very juristocratic syndrome Thayer rightly found so troubling. If Americans still remain with him at the dawn of our commitment to democracy, they will have to save it from judges in a new way all their own