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Panel I: Personal Data Protection: How Technology Jeopardizes Privacy
No full textPanel I. Personal Data Protection: How Technology Jeopardizes Privacy
Morgan Cloud, Charles Howard Candler Professor of Law, Emory University School of Law (Moderator)
Anita L. Allen, Vice Provost for Faculty, Henry R. Silverman Professor of Law and Professor of Philosophy, University of Pennsylvania
Roy E. Barnes, Former Georgia Governor; Founder, Barnes Law Group
Woodrow Hartzog, Professor of Law and Computer Science, Northeastern University School of La
Compensating Victims of Police Violence
Get PDFVictims of police violence suffer physical trauma and their families suffer mental trauma “born from the violation of a certain social trust.” Their losses are also financial, including medical expenses and mental health treatment, as well as lost income. While scholars and citizens have advocated for accountability and justice, this is the first essay to advocate for the simple act of victims’ compensation for victims of police violence. To be considered for compensation, victims must first prove that they cooperated with law enforcement and were “innocent” of wrongdoing. Yet, victims of police violence are inordinately and openly blamed for their own injuries in police reports. In incidents of police violence, officers may be incentivized to evade accountability by reporting that the victim was contributorily at fault. If neither police nor prosecutors identify the people harmed as victims, then these injured people will not qualify for Victim Compensation Funds to pay for mental health treatment or medical care. This Essay explains Victim Compensation Funds, which are available in every state and U.S. territory, and why police violence victims rarely qualify for compensation. The Essay calls upon state legislators and district attorneys to make these victims eligible for consideration of funds, namely by eliminating the requirement of cooperation with law enforcement for victims of police violence and re-examining the “innocence” requirement
Religious Alternative Dispute Resolution in Israel and Other Nations With State-Sponsored Religious Courts: Crafting a More Efficient and Better Relationship Between Rabbinical Courts and Arbitration Law in Israel
Get PDFThis paper proposes the expansion of both private and public options regarding religious arbitration in Israel, broadening both the choice of law and the choice of forum available to Israeli citizens in cases of either commercial law or issues of status (such as divorce, marriage, and conversion). The current law in Israel prohibits citizens from adjudicating their monetary disputes in state religious courts and treats private religious courts as no different from any other arbitration tribunal, precluding these private religious courts from marriage, divorce and conversion matters. We propose that both of these restrictions be lifted, while the role of Jewish Law in the state is not changed
The Class Action Struggle: Should Bristol-Myer\u27s Limit on Personal Jurisdiction Apply to Class Actions?
Get PDFIn Bristol-Myers Squibb Co. v. Superior Court of California, the Supreme Court held that, in a coordinated mass action, a court may not exercise specific personal jurisdiction over claims from non-resident plaintiffs who did not suffer their injuries in the forum state. The Court, however, did not explicitly state whether and how its holding would apply to class actions. In March 2020, federal appellate courts began to be confronted with the issue. While the D.C. Circuit in Molock v. Whole Foods Group, Inc. side-stepped the personal jurisdiction question, Judge Silberman’s dissenting opinion argued that the logic of Bristol-Myers should apply to class actions as it does to mass actions. In Mussat v. IQVIA, the Seventh Circuit disagreed, concluding that the differences between class actions and mass actions are sufficient to distinguish the holding of Bristol-Myers as applied to the class action context.
This Comment will argue that Bristol-Myers should not be extended to class actions. Doing so would cause a momentous shift in class action law that is not supported by the Bristol-Myers opinion. In addition, as Mussat recognizes, mass actions are significantly different from class actions, as class action members are not true parties to a class action as mass action plaintiffs are to a mass action. Moreover, Federal Rule of Civil Procedure 23, which sets forth standards for appropriate certification of class actions, provides a sufficient procedural basis for protecting defendants’ due process rights. Finally, applying Bristol-Myers to class actions would defeat the policy purposes of the class action device and harm the overall efficiency of the litigation system
Punishment Only for the Poor: The Unconstitutionality of Pay-to-Vote Disenfranchisement Laws
Get PDFFelony disenfranchisement has remained a longstanding practice in the United States, utilized by nearly every state in the Union to punish those convicted of a felony with a bar from the franchise. However, when individuals attempt to re-obtain their voting rights, individual state restoration systems vary immensely, with some providing automatic restoration following incarceration and others requiring payment of legal financial obligations, such as fines or restitution. In the wake of a constitutional amendment to provide automatic restoration, the Florida legislature proposed a new system in SB 7066, aimed at curbing the effects of the amendment. Now signed into law, this new scheme disallows restoration until the individual has fully paid all fines, fees, and restitution associated with their sentence. It has since been challenged and was upheld by the Eleventh Circuit in Jones v. Governor of Florida.
This Comment explores the Eleventh Circuit decision in Jones, positing that the majority came to an erroneous conclusion by both employing the wrong classification and wrongfully applying its precedent. Accordingly, noticing the disastrous effects of these deficiencies in Jones, this Comment argues for a new path forward in judicial review of payment-based restoration laws, uniting the Supreme Court’s jurisprudence on wealth discrimination both within the criminal justice system and within access to the franchise. Such a union should require heightened scrutiny for all laws seeking to provide criminal punishments based on one’s inability to pay due to the law’s intent to criminalize poverty, especially when such punishments deprive an individual of a right as fundamental as the one to vote
A Tale of Two Treaties: A Study of NAFTA and the USMCA\u27s Investor-State Dispute Settlement Mechanisms
Get PDFInvestor-State Dispute Settlement (ISDS) is a standard component of most multilateral free-trade and investment regimes as a way of encouraging cross-border investment. However, the concept has long been mired in controversy, primarily due to its alleged transgression against national sovereignty and domestic regulatory powers. As ideas such as free trade and globalization come under increasing scrutiny in the post-Great Recession era, these controversies have not only rendered ISDS itself politically vulnerable, but also came to jeopardize the success and survival of free-trade and investment regimes that commonly contain ISDS provisions. A salient example of the increasing political risks carried by ISDS is the renegotiation of the North American Free Trade Agreement (NAFTA), during which ISDS reform became a major point of contention between Canadian, Mexican, and U.S. negotiators. This Comment first presents an overview and case studies regarding the existing ISDS mechanism contained within NAFTA Chapter 11, before moving onto an examination of its counterpart in the Chapter 14 of the United States-Mexico-Canada Agreement (USMCA). While USMCA Chapter 14 is narrower in scope compared to its NAFTA predecessor, it strikes a much-needed balance between reducing the political risks that have long plagued the traditional ISDS model and encouraging cross-border investment from the United States into Mexico, the latter being a developing country which uses ISDS to attract and reassure foreign investors. In sum, while questions regarding further revisions and potential alternatives remain, the USMCA\u27s approach towards ISDS may well prove to be a viable template for the next generation of ISDS provisions
Regulating Competition, Both the Forest and the Trees
Get PDFAt the heart of the ideological conflict between the American political parties lies a fundamental disagreement about regulation and the proper relationship between government and markets. That conflict is partly about the substance of regulatory policy and partly about the scope of regulatory policymaking discretion. Both of these dimensions are implicated in a series of relatively obscure disputes recently before the Federal Energy Regulatory Commission (FERC). The central question in these cases is whether it is fair and constitutional for FERC to enforce Federal Power Act prohibitions against energy market manipulation against the defendants, given that the trading at issue violated none of the specific market rules established by the overseers of the regional electricity market in which the defendants operated. This dispute gets to the heart of a recurring and fundamental conflict in modern regulatory politics: namely, that regardless of how aggressively Republicans and conservatives pursue deregulation and deconstruction of the administrative state, or how sharply Democrats and progressives react to those aspirations, both parties’ agendas remain constrained (at least for now) by extant legislative mandates. On the one hand, federal regulatory agencies remain bound by public interest and consumer protection obligations written into their enabling legislation; on the other, they seem unlikely to abandon entirely their recent embrace of competition and markets. This Essay argues that the fundamental challenge to regulation represented by defendants’ position in these cases is misguided, both legally and philosophically. It is legally misguided because it ignores established principles of law supporting an agency’s general power to enforce broad statutory mandates directly, on a case-by-case basis, even when defendants have complied with more specific market rules. Indeed, that regulatory prerogative is well established within electricity market regulation as well. The defense is also philosophically misguided because it ignores the reasons historically regulated markets were regulated in the first place: namely, because real world markets often fail to maximize welfare in the ways textbook markets suggest, and because market failures are very difficult for regulators to predict ex ante. In the modern world of light-handed regulation, the central task facing regulatory agencies is to capture the benefits of competition while steering competition toward public interest goals. Given the fluidity and complexity of today’s markets, and the magnitude of the particular changes facing robust, competitive, and “decarbonizing” electricity markets, that task is Herculean: without the broad authority to use adjudication to enforce public interest mandates, the task becomes Sisyphean. Therefore, unless and until Congress is willing to repeal the public interest mandates under which many regulatory agencies operate, the task of reconciling competitive markets with public interest mandates requires that agencies be able to enforce both broad statutory mandates and specific market rules simultaneously, because in complex, real world markets the market participants will always be several steps ahead of specific market rules in ways that defeat important public interest goals
A Prescription for America\u27s Prescriptions
Get PDFThe issue of prescription drug costs has dominated the U.S. political discussion, both at the federal and local levels, as the amount individuals must pay to receive the medicines they need continues to increase. In this context, the debate over how best to determine a reasonable drug price and which existing drugs should be subject to such prices has spurred multiple legislation proposals. However, the implementation of a reasonable price mandate to control the cost of prescription drugs is not a novel idea. The U.K, India, and Germany have all established reasonable drug price schemes. This Comment examines why past U.S. legislation has failed to decrease drug prices and how the U.S. can leverage lessons learned from the U.K., India, and Germany to best determine which factors to utilize for a reasonable drug price determination and which drugs to mandate to price caps. This Comment concludes by determining that the Lower Drug Costs Now Act, introduced in September 2019, shows the most promise in reducing prescription drug prices by combining the U.K.’s reference pricing system and Germany’s value-based system, while still requiring that research and development cost is considered in the price determination
Kisor v. Wilkie as a Limit on Auer Deference in the Sentencing Context
Get PDFWhile there has been increased attention on the necessity of criminal justice reform in the United States, limited attention has been paid to the role that the United States Sentencing Commission has played in exacerbating the very problems that it was designed to address. Though the Sentencing Commission was initially envisioned as a body that would protect criminal defendants from sentencing disparities, it has morphed into a body that has limited effectiveness in reaching that goal due to its misuse of commentary as a tool to effect substantive change in sentencing policy to the detriment of criminal defendants. Commentary was initially designed as a flexible tool that the Sentencing Commission could use to interpret and explain the sentencing guidelines, but it has increasingly been used by the Commission to replace amendments to the guidelines themselves. This shift might seem insignificant on its face, but, in reality, it has subjected criminal defendants to years of additional imprisonment in the absence of the protections that Congress initially intended, because courts have been required to defer to this commentary in most cases by an administrative law doctrine known as Auer deference. This Comment proposes that the Supreme Court’s recent decision in Kisor v. Wilkie to integrate the test for Chevron deference into the test for Auer deference presents an opportunity for courts to address this problem. This Comment then argues that courts should strictly apply the traditional tools of statutory construction and use the rule of lenity in determining whether (1) a sentencing guideline is genuinely ambiguous and (2) the Sentencing Commission’s interpretation of that guideline in commentary is reasonable. Applying the test for Auer deference in this manner would drastically reduce the frequency with which commentary receives deference from the courts, something that would protect criminal defendants from changes in sentencing policy that are enacted in the absence of the protections provided for in the Sentencing Reform Act. Moreover, this change would encourage the Sentencing Commission to make substantive changes to sentencing policy by amending the sentencing guidelines themselves—not by amending the commentary—which would benefit criminal defendants and society more generally