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Searches Without Suspicion: Avoiding a Four Million Person Underclass
Get PDFIn Samson v. California, the Supreme Court upheld warrantless, suspicionless searches for parolees. That determination was controversial both because suspicionless searches are, by definition, anathema to the Fourth Amendment, and because they arguably undermine parolees’ rehabilitation. Less attention has been given to the fact that the implications of the case were not limited to parolees. The opinion in Samson included half a sentence of dicta that seemingly swept probationers into its analysis, implicating the rights of millions of additional people in the United States. Not only is analogizing parolees and probationers not logically sound because the two groups differ in important respects, but the Court made this proclamation without any briefing on whether it is constitutional or practically advisable to treat probationers’ rights in the same restrictive way as the Court ultimately determined was appropriate for parolees. Such preemptive behavior by the Court is contrary to well-established norms of jurisprudence, and for good reason: the resulting extemporaneous half-sentence addressing the rights of probationers has created considerable uncertainty as to its precedential power, and the circuits have since applied the decree in disparate ways. We argue that the substantial differences between probationers and parolees make the extension to probationers flawed. Permitting warrantless, suspicionless searches of probationers defeats the rehabilitative purpose of probation, risks creating an underclass of millions of people, and is likely to particularly harm already marginalized communities. Finally, there is no limiting principle to the Court’s logic, and so its inclusion of probationers may be a slippery slope to undermining the rights of many others
Artificial Intelligence Regulation, Minimum Viable Products, and Partitive Innovation
Get PDFThis Essay identifies entrepreneurs’ experimentation with minimum viable products (“MVPs”) as a means for proposed AI-specific regulation to constrain innovation in other markets. To that end, the Essay coins the term “partitive innovation” to describe a business’s perspective when it uses a domain-agnostic, highly generalizable technology to introduce a product to a particular market, thereby eliciting overbroad domain-specific regulations that impair alternative innovative uses of the underlying technology. This process is unfolding with AI, as broadly constructed proposed regulation can restrict innovation in adjacent fields by shifting software MVPs’ mainly ex post regulatory regime to one with recurring duties or ex ante obligations. Consequently, the upfront cost of developing and altering those MVPs increases, thus effectively creating a barrier to entry in a market other than the one targeted by AI regulation. The Essay then considers real-world examples of proposed AI policy, California’s Assembly Bill 331 and the latest markup of the European Union’s AI Act, to illustrate the kinds of provisions that leverage AI products’ generality to expand policy influence into other domains. The Essay then reviews a sampling of potential options to mitigate the regulatory spillover, including clear textual authority limits, grace periods based on enterprise scale, and monitoring the Food & Drug Administration’s opposite trend of using Predetermined Change Control Plans to reduce the number of ex ante reviews needed for medical AI devices
The Greens’ Dilemma: Building Tomorrow’s Climate Infrastructure Today
Get PDF“We need to make it easier to build electricity transmission lines.” This plea came recently not from an electric utility executive but from Senator Sheldon Whitehouse, one of the Senate’s champions of progressive climate change policy. His concern is that the massive scale of new climate infrastructure urgently needed to meet our nation’s greenhouse gas emissions reduction policy goals will face a substantial obstacle in the form of existing federal, state, and local environmental laws. A small but growing chorus of politicians and commentators with impeccable green credentials agrees that reform of that system will be needed. But how? How can environmental law be reformed to facilitate building climate infrastructure faster without unduly sacrificing its core progressive goals of environmental conservation, distributional equity, and public participation?
That hard question defines what this Article describes as the Greens’ Dilemma, and there are no easy answers. We take the position in this Article that the unprecedented scale and urgency of required climate infrastructure requires reconsidering the “Grand Bargain” of the 1970s that established stronger environmental protection in exchange for more challenging infrastructure development. Green interests, however, largely remain resistant even to opening that discussion. As a result, with few exceptions, reform proposals thus far have amounted to modest streamlining “tweaks” compared to what we argue will be needed to accelerate climate infrastructure sufficiently to achieve national climate policy goals. To move beyond tweaking to a “New Grand Bargain,” we explore how to assess the trade-off between speed to develop and build climate infrastructure, on the one hand, and ensuring adequate conservation, distributional equity, and public participation on the other. We outline how a new regime would leverage streamlining methods more comprehensively and, ultimately, more aggressively than has been proposed thus far, including through federal preemption, centralizing federal authority, establishing strict timelines, and providing more comprehensive and transparent information sources and access.
The Greens’ Dilemma is real. The trade-offs inherent between building climate infrastructure quickly enough to achieve national climate policy goals versus ensuring strong conservation, equity, and participation goals are difficult. The time for serious debate is now. This is the first law review article to lay the foundation for that emerging national conversation
The Fresh Start Paradox: Economic Disaster Relief Available to Title 11 Debtors
Get PDFThe Small Business Administration (“SBA”) has been providing disaster relief in the form of Economic Injury Disaster Loans (“EIDLs”) since its inception in 1953. In the context of the COVID-19 pandemic, the CARES Act charged the SBA with issuing forgivable loans through the Paycheck Protection Program (“PPP”) to small businesses which would otherwise face permanent closure. Though the CARES Act did not specifically grant the SBA authority to do so, the SBA interpreted its powers to include the ability to set requirements for loan approval which were not laid out in the Act itself. Specifically, the SBA promulgated a rule indicating that loan applicants presently involved in a bankruptcy petition were ineligible for PPP loans. This rule has become the subject of extensive litigation and courts have been forced to answer the question of whether the SBA’s conduct violates 11 U.S.C. § 525(a), which prohibits discrimination in the award of certain government programs by governmental entities. Some courts have found the SBA to have violated this provision, while others have declined to rule against the SBA. Among the reasons cited for finding for the SBA is the argument that the Chevron Doctrine constrains the judiciary’s ability to scrutinize the actions of the agency. The result of this judicial split is an uneven application of bankruptcy law and a violation of the Code’s overall purpose.
This Comment first discusses the history of PPP loans and Economic Injury Disaster Loans generally. Next, this Comment surveys the statutory landscape of section 525(a) and the existing case law arising from PPP loan litigation. The subsequent analysis considers the merits of various arguments presented both against and in favor of the SBA’s position and explains why Economic Injury Disaster Loans, such as PPP loans, should be protected under section 525(a). Finally, this Comment concludes by looking at how resolution of the PPP loan dispute will impact small businesses in the future and by offering a legislative solution for closing the gaps in the Code’s current provisions
Saving SPACs from the SEC’s Potentially Ruinous Overreach
Get PDFThe resurgence of Special Purpose Acquisition Companies (“SPACs”) in the U.S. securities market has demonstrated potential as an alternative to the traditional initial public offering (“IPO”). However, the evolution of SPACs from their fraudulent “blank check” ancestors has left the Securities and Exchange Commission (“SEC”) weary of SPACs’ continued presence in the market. Currently, SPACs exist as an exception to Rule 419 and the Penny Stock Reform Act of 1990, thereby allowing them to escape the rigorous disclosure requirements that not only eradicated their ancestors, but also significantly burdened the timeline of the traditional IPO process. While many consider SPACs a unique opportunity for non-institutional investors to reap benefits similar to those seen in private equity, a closer look into their evolution in the market suggests an entirely different conclusion.
This Comment offers a critical assessment of the SPAC structure and advances unique regulatory solutions. It begins with a focus on the landscape surrounding the SPAC structure, looking to the evolution of securities market regulations and the rise and evolution of the SPAC as an alternative to the traditional IPO. Following discussions on the various tensions present in the current form, this Comment sheds light on persistent issues lingering within the current form, illustrating the necessity for SPAC reform. Finally, this Comment proposes four solutions—bringing back investor voice, mitigating dilution to the investors, tidying disclosure requirements, and revisiting due diligence—and argues the need for SPAC creators to accept guidance from the SEC and look inward to SPAC performance to undergo self-reform in order to avoid the possibility of SPACs being regulated out of existence
Inside Out, Upside Down: Circuit Court Confusion Over Character Copyrightability
Get PDFEnormous amounts of new content are posted on social media every day. Ordinarily, if a work is original and created by the author, the work is automatically protected under copyright without the need for registration. However, in recent years, copyright protection has become difficult to obtain for one type of expression: fictional characters.
Today, characters hold immense cultural significance. For some, characters provide an escape from reality, entertainment, and, in some cases, a blueprint to which one can aspire. For entertainment studios, characters hold immense economic value. If a character is popular—holding cultural significance—a studio might create a prequel or spin-off television series about the character to satiate fan bases.
Despite the cultural and economic significance of characters, the only characters which have been granted copyright protection possess long tenures in recognizable entertainment companies, such as James Bond, Godzilla, Superman, and the Batmobile. Sparse copyright protection for characters is a result of a circuit split where three jurisdictions apply divergent standards not based on originality. In 2020, The Moodsters, five anthropomorphic personifications of moods, were denied copyright protection in the Ninth Circuit, which has the highest standard for character copyrightability. This heightened standard ultimately allowed Disney to make billions off its animated film Inside Out. The decision—made in Daniels v. Walt Disney Co.—underscores the repercussions of a heightened standard for character copyrightability, which has allowed courts to grant copyright protection for famous characters alone.
This Comment proposes the following solution to this problem: adopting the Seventh Circuit’s “stock character” test for character copyrightability. To lay the foundation, it explores the disparate standards set by the Second, Seventh, and Ninth Circuits for character copyrightability. Particularly, it delves into the evolution of the doctrine in the Ninth Circuit, which has greatly expanded protection for character copyrights. It then analyzes the Daniels v. Walt Disney Co. decision and its flaws—noting specifically how its rationale raises the already-heightened standard. Finally, it analyzes the constitutional basis for copyright, the policy and economic considerations of copyright, and the Supreme Court’s foundational copyright decision, Feist Publications v. Rural Telephone Service Co
Crimes of Suspicion
Get PDFRequiring that officers have suspicion of specific crimes before they seize people during stops or arrests is a fundamental rule-of-law limitation on government power. Until very recently, the Supreme Court studiously avoided saying whether reasonable suspicion for street and traffic stops must be crime specific, and lower courts are sharply divided as a result. Statements made in Kansas v. Glover that the Fourth Amendment requires reasonable suspicion of a “particular crime” or of “specific criminal activity” may reflect an effort to rehabilitate this foundational principle, but crime specificity was not the Court’s focus in Glover. Meanwhile, Fourth Amendment scholars, even those closely focused on the nuances of probable cause and reasonable suspicion, have mostly ignored these developments.
Police capitalize on this uncertainty, routinely conducting stops that are not tethered to any particular crime of suspicion. Even when the crime-control stakes for these general suspicion stops are low, they can lead to police violence. The deaths of Elijah McClain and Freddie Gray can be traced back to street stops based only on this sort of formless, general suspicion.
This Article develops a comprehensive case for a Fourth Amendment crime-specificity requirement applicable to street and traffic stops. The historical case is strong: the Framers clearly expected probable cause of a particular crime of suspicion for seizures, at least for elites, and those requirements have largely been preserved for arrests. It is also complicated. These formal rules developed alongside regular practices, which persisted long into the twentieth century before being held unconstitutional, of arresting those in poor and minority communities based on status or general suspicion.
After marshaling historical evidence about arrests and crime specificity, this Article undertakes a thorough review of modern stop cases that raise these questions and analyzes relevant policy arguments. The impulses that often lead the Court to defer to law enforcement interpretations of suspicious facts in Fourth Amendment cases, do not apply to this question of law. The crime of suspicion is a bright line, drawn by the legislature into the criminal code, and it is a line that police officers are already expected to know.
In practice, a robust crime-specificity requirement must be paired with decriminalization efforts. Otherwise, the current bloat of American criminal codes may limit the practical impact of a crime-specificity requirement. Officers already exploit low-level offenses to conduct stops and intrusive Fourth Amendment searches. But there is potential here to rein in problematic street enforcement. During encounters where police are not quite sure of what (if any) crime they suspect, a crime-specificity rule requires that they remain in information-gathering mode and develop more specific suspicion before laying hands on a suspect. It is a requirement that makes space for de-escalation, for investigating alternative interventions, or for officers to walk away
Crossing the Abyss: A Comparative Analysis of the Enforceability of Preliminary Agreements
Get PDFA major unresolved issue in international business transactions relates to the enforceability of preliminary agreements. Preliminary agreements cover a long list of instruments commonly used in most sectors of the economy. The common presumption is that these agreements are not enforceable. The correct answer is much more nuanced. For example, a preliminary agreement may be held to be unenforceable but at the same time be the basis for legal liability. There are strong differences between the civil and common laws on the issues of good faith negotiations and the enforceability of preliminary agreements, but there is also sustained uncertainty within legal systems. This article reviews Chinese, French, German, and Anglo-American law on the twin issues of enforceability and liability. It shows that the trend has been in favor of greater judicial scrutiny of such agreements that has led to greater enforceability and the expansion of available remedies, whether an agreement is deemed to be enforceable or unenforceable.
The issue of preliminary agreements and their place in the overall legal scheme has become less clear as courts have recognized their necessity as modern contract transactions have become more long-term and complex. The countries selected for review provide a three-part taxonomy. First, preliminary agreements are unenforceable due to the lack of certainty of terms and party intent. Second, preliminary agreements that are detailed may be recognized as enforceable contracts. Third, there is a broad middle area in which preliminary agreements are unenforceable as a whole but can be the basis for liability for independent obligations found in the agreements. These independent obligations include an implied-in-law or an implied-in-fact obligation to negotiate in good faith, duty of confidentiality, and duty of exclusivity to not negotiate with other parties. It is in this middle area where there has been a convergence in legal systems and, at the same time, where the issues of liability and remedies have become more uncertain. Because of the ubiquity of these agreements, the possibility of unexpected liability remains pronounced in international business negotiations
Laicite or Laicita: The Regulation of Religious Symbols in French and Italian Public Schools
Get PDFBoth France and Italy regulate the presence of religious symbols in public classrooms with the aim of transmitting national values and culture to students and promoting state unity. As more students of non-Christian backgrounds immigrate to France and Italy from outside Europe, the debate around religion in public schools has intensified, especially concerning Muslim students. France enforces a strictly neutral secular space by requiring the removal of any religious symbols, including head coverings like hijabs and yarmulkas. Italy mandated the display of the crucifix in every public school classroom until 2021, when the option was introduced to remove it. A comparison of these two radically different approaches to the presence of religion in schools reveals flaws in the assumption that a strictly neutral space is more beneficial to all students, particularly those from minority religious and cultural backgrounds.
As a product of their long and complex relationships with the Catholic Church, France and Italy have developed differing models of secularism that have shaped their legal frameworks for the regulation of religion in public life. French secularism, known as laicite, is built on the rejection of religion and demands the removal of religion to protect state unity. The Italian model of secularism, known as laicita, developed out of an accommodating relationship with the Church and reliance by the state on the unifying power of religion, and as a result is inclusive of religion. This Comment examines the way these opposing conceptions of secularism shape the legal approach to religious symbols in public education through two European Court of Human Rights cases, Dogru v. France and Lautsi v. Italy.
The centrality of the rejection of religion to French secularism results in a legal framework that treats all religious symbols as inherently threatening. The application of this framework demands that students of minority religions either remove important outward displays of religious and cultural identity or leave school. Comparison of France and Italy’s legal frameworks demonstrates that Italy’s flexible approach to religious symbols is more conducive to the transmission of national culture and values to students, and that the serious failings of France’s rigid legal approach could be cured by an adoption of some of these flexible elements
