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No Exit: Ten Years of Privacy vs. Speech Post-Sorrell
Get PDFA decade has passed since the U.S. Supreme Court held in Sorrell vs. IMS Health that a Vermont privacy law violated the First Amendment. Somewhat surprisingly, the debate about the intersection between privacy laws and free speech protections has not progressed much in the intervening years. If anything, the concerns that some privacy advocates had following Sorrell-that the First Amendment could be used as a tool to overturn privacy regulations-have extended to other areas of economic regulation. As a public interest attorney working on technology law and policy, I entered into practice not long after Sorrell was decided, when it seemed that privacy laws might not survive the Supreme Court\u27s ever-expanding First Amendment jurisprudence. It has been dispiriting to see that, in the intervening years, not much has changed. Free speech advocates continue to claim that privacy laws raise significant, if not fatal, First Amendment issues. Privacy experts argue not only for the constitutionality of privacy laws, but also their increased necessity in a digital economy.
Amidst this backdrop, new First Amendment challenges to privacy proliferate even as the Supreme Court continues to expand the scope of First Amendment protections. Is privacy law under existential threat? And how can that be given the increased concerns and public attention to the lack of effective federal privacy regulation? This Essay seeks to contextualize the First Amendment challenges to privacy laws, arguing that the government\u27s need to protect individual privacy is more persuasive than ever. It also sounds a note of caution, observing how the Supreme Court\u27s recent hesitancy to go all-in on upending related doctrinal areas like commercial speech and standing demonstrates an understanding that putting privacy laws at risk might be a bridge too far
How to Treat the WTO\u27s Problem with Precedent
Get PDFThis Article argues that the World Trade Organization’s Appellate Body (AB), or a successor body, must become more transparent in justifying its decision to rely (or not) on prior decisions. The AB’s practice of precedent—which the United States cited as a cause of its decision to paralyze the AB by blocking new appointments-—is similar to how it has approached “likeness” in nondiscrimination cases. It placed a lot of weight on whether two cases (or products) are sufficiently similar to be compared, and it spent relatively less time substantively justifying its treatment of prior cases. Because the WTO does not have a system of stare decisis, the AB and WTO panels generally must explain why they find prior decisions persuasive, rather than simply relying on similarity to justify carrying prior interpretations forward.
The Article begins by examining and evaluating the results of a new study from Jeffrey Kucik and Sergio Puig, the first study to use a large dataset to study the AB’s use of precedent. The Article then advances a framework for how WTO dispute panels should evaluate the relevance of prior cases in future disputes. The proposed approach would treat the comparison of cases as merely a threshold inquiry. If two cases are sufficiently alike and one party contests the applicability of the prior decision, then a tribunal must substantively justify its treatment of the prior decision in light of a variety of factors. In some instances, the result may be that the AB or a panel acknowledges that a prior interpretation was wrong and should not be followed. Openly analyzing the persuasive value of prior cases, and acknowledging when those cases should not be followed, would better promote the goals of relying on prior decisions-—promoting predictability, transparency, and coherence in the law’s application-—as compared to deference to prior decisions based only on the similarity of two disputes
The Status of State and Nonstate Actors in Postwar Hostilities: Restoring the Rule of Law to US Targeted Killing Operations
Get PDFWith the killing of Iranian general Qassim Soleimani, the United States crossed a new frontier in the use of extrajudicial lethal operations outside of armed conflict. As a state actor, Soleimani once would have been entirely off-limits as a target outside the context of a formal armed conflict between the United States and Iran. The Trump administration\u27s choice to conduct a one-off strike on a state military leader indicates that conflicts among state adversaries are increasingly fought using the hybridized tools of the war on terror. This Article will argue that the increasing use of such techniques and the perceived relaxation of the constraints of international law in conflicts among states is a regrettable, but foreseeable, result of a certain conception of violent nonstate actors that immediately followed the 9/11 attacks. Greater clarity about the legal boundaries governing the use of Bush-era interrogation methods and President Obama\u27s dramatic increase in the use of extrajudicial killing against nonstate actors might have forestalled this development.
This Article focuses on the decision to treat violent nonstate actors in the war on terror as unlawful combatants, -a framework that deprives them of the traditional protections of both the Law of Armed Conflict (LOAC) and the constitutional guarantees ordinarily extended to criminal defendants. This ambiguity provided legal impunity for abuse, the impossibility of achieving convictions at trial for those detained, and an uncertain legal basis for those who are targeted rather than captured. The question of status now arises with urgency for violent state actors like Qassim Soleimani, who was killed by a US drone strike in January of 2020. This Article will argue that violent nonstate actors are more properly thought of as civilians than combatants but that this approach should not be permitted to affect the treatment of state actors like Soleimani, whose status as a state actor implies that he can only be targeted as a state combatant and then only if in the context of armed conflict
Praxis and Paradox: Inside the Black Box of Eviction Court
Get PDFIn the American legal system, we typically conceive of legal disputes as governed by specific rules and procedures, resolved in a formalized court setting, with lawyers shepherding both parties through an adversarial process involving the introduction of evidence and burdens of proof. The often-highlighted exception to this understanding is the mass, assembly-line processing of cases, whether civil or criminal, in large, urban, lower-level courts. The gap left unfilled by either of these two narratives is how court functions for the average unrepresented litigant in smaller and nonurban jurisdictions across the United States.
For many tenants facing eviction, elements of the typical formal legal process are absent, resulting in an experience that only loosely resembles what is taught in law school. This Article is based on a first-of-its-kind interdisciplinary, multi-year, mixed-methods study of suburban and rural dispossessory (eviction) courts in Georgia that aims to contribute to the knowledge gap described above. Through detailed quantitative analysis of case files and qualitative data gleaned from court observation and stakeholder interviews, and its unique focus on courts outside of a major city, it provides a clearer picture of how eviction court in such jurisdictions operates in practice and what resulting variations in process mean for case outcomes.
Ultimately, this Article demonstrates that while one set of laws may govern throughout the state, the process for applying and enforcing those laws is highly localized, dependent on the nature of place and the attitudes of the stakeholders involved. While smaller, lower-volume courts have fewer caseload pressures and appear to prioritize procedural justice, the process they conduct functions less like a traditional legal proceeding and more as a vehicle for rent collection. Paradoxically, elements typically associated with fair process-like the opportunity to respond to legal claims through filing an answer or the scheduling of a hearing on the merits-do not always manifest in substantively improved outcomes for tenants, given the structure of the underlying law. The Article concludes by reflecting on what these observations suggest about the limitations and effectiveness of different forms of legal assistance and how court processes, regardless of their locale and the people who operate within them, can maximize access to justice
Chancery Court Questions Whether Nominally Designated Independent Directors Satisfied Requirements of Stockholders Agreement
Get PDFStillwater Appraisal: Delaware Supreme Court Affirms Chancery Court Reliance on Deal Price in Determining Fair Value
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