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De-Identified and Unregulated: How Data Brokers Outpace State Privacy Laws
Full text linkState consumer privacy laws, though increasingly important in the absence of a comprehensive federal privacy framework, fail to effectively regulate the practices of data brokers who exploit de-identified data. Laws like the Tennessee Information Protection Act (TIPA) exempt de-identified data from key protections, leaving significant gaps in oversight.While the Health Insurance Portability and Accountability Act (HIPAA) establishes standards for de-identification, advanced analytics and linkage techniques employed by data brokers render this data increasingly susceptible to re-identification. The Federal Trade Commission (FTC) has taken steps to address these risks, but its limited authority highlights the need for comprehensive solutions.This Note proposes two key approaches to addressing the privacy risks posed by data brokers and the re-identification of de-identified data: enacting federal privacy legislation and adopting synthetic data generation to mitigate re-identification risks to close regulatory loopholes. Together, these measures aim to address the shortcomings of state and federal privacy frameworks, ensuring stronger protections for de-identified data in an evolving data ecosystem
A Crust of Bread: Religious Resistance and the Fourteenth Amendment
Full text linkIn Employment Division v. Smith, the U.S. Supreme Court denied heightened constitutional protection to religiously motivated exercise burdened by neutral and generally applicable laws. The history presented in this Article suggests that the Smith approach conflicts with the original understanding of the Fourteenth Amendment. Out of the crucible of religious abolitionist resistance to the Fugitive Slave Act emerged a substantive theory of constitutional religious freedom: American citizens should have the right to obey the Biblical command to care for the needy and provide the hungry a “crust of bread,” even if doing so was contrary to neutral and generally applicable state or federal law. This understanding of religious liberty informed the constitutional ideas of Reconstruction-Era Republicans and, ultimately, the original understanding of the Privileges or Immunities Clause of the Fourteenth Amendment. After canvassing the historical evidence, the Article explores how replacing the Smith test with a strict scrutiny test would better protect post– Fourteenth Amendment free exercise. At the very least, the evidence in this Article also supports a trajectory the Supreme Court has been on in recent cases to narrow the application of Smith by dramatically limiting the types of laws that can qualify as being neutral and generally applicable
Chancery Court Rejects Argument That Corwin Is Inapplicable to PostSigning Board Actions Characterized as Extrinsic to Merger Process Approved by Stockholders
Full text linkAlice’s Patent Puzzle: Unlocking Patent Eligibility for Diagnostic Methods Within Wonderland’s Faulty Two-Step Framework
Full text linkAs it stands today, diagnostic tests and their methods are largely unpatentable. In 2012, the Supreme Court, in Mayo Collaborative Services v. Prometheus Laboratories, Inc., redefined the scope of patent subject matter, leaving a profound impact in the context of medical diagnostics. The subsequent decision by the Court in Alice Corporation v. CLS Bank International two years later significantly expanded the range of judicially created exceptions to statutory patent eligibility criteria to encompass “abstract ideas,” solidifying this “Alice-Mayo” framework as the definitive test to determine patent-eligible subject matter.
But this shift has made it exceedingly difficult to secure diagnostic method patents and has led to a surge in patent invalidation under 35 U.S.C. § 101. The Alice-Mayo framework has resulted in inconsistent outcomes as courts and the United States Patent and Trademark Office struggle to apply the framework to diagnostic methods. The persistent legal ambiguity underscores the need for clarity, with the patent law community clamoring for large-scale guidance from either the Supreme Court or Congress. This Note examines several proffered approaches to handling the legal ambiguity that persists in light of the Alice-Mayo framework, weighing the advantages of carving out exceptions against complete upheaval through congressional reform statutes. This Note’s hybrid solution combines (i) a current practice under the two-step framework with the implementation of (ii) a new statutory exception and (iii) a compulsory licensing provision. It aims to create a narrow pocket that would allow diagnostic methods to be patent eligible so long as they are tied to a specific treatment and, at the same time, dispel accessibility concerns regarding the excessive costs of patented diagnostics
Justice Through Proximity: Theoretical Foundations and Practical Applications of Collaborative Justice
No full textGoogle’s Chrome Antitrust Paradox
Full text linkThis Article examines Google’s dominance of the browser market, highlighting how Google’s Chrome browser plays a critical role in reinforcing Google’s dominance in other markets. While Google portrays Chrome as a neutral platform built on open-source technologies, this Article shows that Chrome is, in fact, instrumental in Google’s strategy to reinforce its dominance in the online advertising, publishing, and browser markets. The examination of Google’s strategic acquisitions, anticompetitive practices, and the implementation of so-called “privacy controls” underlines that Chrome is far from a neutral gateway to the web. Rather, it serves as a key tool for Google to maintain and extend its market power, often to the detriment of competition and innovation in the digital economy.This Article illustrates how Chrome not only bolsters Google’s position in online advertising and publishing through practices such as coercion and self-preferencing, but also leverages its advertising clout to engage in a “pay-to-play” paradigm—the cornerstone of Google’s larger strategy of market control. It also outlines potential regulatory interventions and remedies by drawing on historical antitrust precedents. Lastly, this Article proposes a triad of solutions motivated by an analysis of Google’s abuse of Chrome, including behavioral remedies targeting specific anticompetitive practices, structural remedies involving an internal separation of Google’s divisions, and divestiture of Chrome from Google into an independent organization.Despite Chrome’s dominance and its critical role in Google’s ecosystem, as well as its recent legal troubles with the Department of Justice, it so far has avoided significant antitrust action. A key reason for this inaction lies in the long-standing precedent supporting the hegemony of technology firms and the uncertainty surrounding Chrome’s viability as a standalone entity. This Article attempts to address these issues to enable antitrust actions that are essential in remedying current market imbalances. Such actions are also critical to mitigate future threats to competition from an increasingly monopolistic technology landscape, thereby fostering a competitive digital environment that promotes innovation and protects consumer interests
Target Companies Regain “Significant Tool” to Encourage Reluctant Buyers to Consummate Public Merger Transactions
Full text linkSuper-Canons
Full text linkEspecially since 2017, the Roberts Court has been imposing a new regime onto American public law. The new regime is paring back the authority of expert agencies to implement their delegated responsibilities, reducing the power of Congress to make long-term delegations while enhancing the power of the states and the President (and the U.S. Supreme Court itself), protecting and encouraging expression of religious values in public and commercial fora, limiting women’s rights to reproductive choice, and reducing the capacity of state and private institutions to inculcate diversity and inclusion.
This Article maintains that the new regime is not entirely driven by constitutional and statutory precedents, nor even by a neutral reading of legal texts and original public meaning. Relevant legal materials are filtered through political philosophies valued by the majority Justices. Inspired by Friedrich von Hayek, Edmund Burke, and Patrick Henry, the Roberts Court’s ideal America is not an administrative state dictating enlightened plans for a structured market economy, a woke pluralism, and a society of rights-entitled citizens. The majority is moved by a vision that starts with our historically situated American culture and traditions, the dynamics of which are dominated not by collective reason and scientific expertise but by the spontaneous play of innumerable minds within a matrix of moral values, beliefs, and customs.
This Article applies that suite of closely related political philosophies to understand the Court’s big regime-changing decisions, which have been widely criticized as lacking support in standard legal sources (text, structure, precedent). The Justices have tried to bridge the gap by translating the political philosophies into novel or supercharged clear statement rules and by reading statutory and constitutional texts through the lens of “Super-Canons” reflecting the political philosophies. This is a breathtaking constitutional revolution seeking to remake America in light of a vision that is revolutionary.
Can the Roberts Court’s vision and doctrinal regime change be defended? The political philosophies reflected in the Super-Canons are strongly related to the “Old Whig” tradition important to the Founding Era of American constitutional history. And it is a vision that half the country seems to accept— but half the country does not. Also, the Super-Canons represent a challenge to the ability of the United States, and the world community, to confront several existential challenges facing us in the next thirty years. In a final irony, the Court’s recent presidential-powers jurisprudence is at war with the philosophies of the Super-Canons and with the rule of law itself