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Getting Off Off-Duty: The Impact of Dobbs on Police Officers’ Private Sexual Lives
Get PDFUpon its leak and subsequent official release, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization shocked and worried the nation. Overnight, the Court overturned forty-nine years of precedent. Those forty-nine years of overturned precedent not only implicate the ability to obtain abortion, but also the ability to engage in relationships, marry, make decisions about our own body, and keep our personal lives private. As a result, many advocates worry about the status of fundamental rights since many of those rights relied on the now overturned cases Roe v. Wade and Planned Parenthood v. Casey as well as the legal reasoning within those cases. As public employees with unique public safety duties, police officers are no strangers to department regulation of their conduct, both off- and onduty. Officers previously challenged adverse employment actions taken against them for off-duty conduct by arguing that the police department violated their right to privacy. Now, with the right of privacy on shaky ground due to the Dobbs decision, the future of officer success in these actions is uncertain. This note analyzes exactly how the Dobbs decision changes the legal landscape for securing fundamental rights. Following an analysis of the case, the note highlights the new challenges officers must overcome in order to successfully protect their private sexual lives from government intrusion. While this note argues that success is difficult, alternative strategies exist which may help secure off-duty sexual privacy for all
Paucity of intellectual property rights information in the US biologics system a decade after passage of the Biosimilars Act
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Forced Pooling: The Unconstitutional Taking of Private Property
Get PDFOur society’s continued addiction to fossil fuels poses an existential threat to our future. The scientific consensus clearly tells us that we must stop burning fossil fuels as fast as possible. This poses a huge political challenge, as many people make a lot of money from the fossil fuel industry, and they resist change. But an overlooked legal doctrine shows that we are not even going after the lowest hanging fruit. Oil and gas rights are often privately held in the United States. Some owners of those rights would be happy to leave their oil and gas safely in the ground. But most states have laws which allow for “forced pooling” of oil and gas rights, allowing operators to extract even the minerals of non-consenting landowners. Halting the extraction of oil and gas owned by those set on profiting from it will be challenging enough. Surely, we can start by not forcing private property owners to extract oil and gas against their will.
There is a ready legal solution to the problem posed by forced pooling in the Takings Clause. Recent cases such as Horne and Cedar Point have clarified two kinds of government actions that per se violate the Takings Clause. If government regulations, even longstanding ones, physically take control of personal property such as raisins (or oil and gas), that is automatically a taking. And if government laws take away the right to exclude and thus authorize invasion of private property by others, that is also a per se taking. Both of these precedents would apply where forced pooling laws allow oil and gas companies to invade private property and physically remove the oil and gas found there.
Changes in the oil and gas industry also justify a change in the legal regime of forced pooling. Forced pooling was designed to address problems caused by the rule of capture, which applies to migratory resources such as water, wildlife, and historically to oil and gas. Modern technology in the oil and gas industry, including horizontal drilling and fracking, instead has enabled the extraction of nonmigratory oil and gas, to which the rule of capture logically does not apply.
These changes in both the law and the oil and gas industry justify a reexamination of forced pooling on constitutional takings grounds. Perhaps surprisingly, the strong property rights approach taken by the Supreme Court in recent cases can actually be used to protect progressive property owners who wish to leave their oil and gas safely in the ground
Monopolization by Exploiting People’s Inertia? On the DOJ’s 2020 Complaint Against Google and Revenue Sharing Agreements as Non-Compete Arrangements
Get PDFIn October 2020, the Department of Justice sued Google for paying Apple and several other search engine distributors to set Google as its users’ default. The complaint alleges that Google’s agreements constitute de facto exclusive dealing arrangements because people only rarely change defaults. Although the complaint correctly asserts that this arrangement violates antitrust law, it misapprehends the mechanism of the anticompetitive harm.
The Google–Apple agreement is more accurately modeled as an arrangement that deters actual competitors from reaching a significant distribution channel and discourages a key potential competitor from entering search. If a potential competitor is paid for a preferred slot but then decides to compete with Google in the search market, the potential competitor will suffer the punitive effect of losing Google’s default provider payments. This last part is neglected in the DOJ’s complaint, which also overlooks that a monopolist has incentives to bid higher than any potential competitor for a vital distribution channel—because monopoly profits are higher than duopoly profits. Not every provider is its distributor’s potential competitor. This Article offers guidelines to distinguish between sound and speculative potential competition claims, suggesting an actual potential competitor has (i) the objective capability and (ii) strong incentives to enter the relevant market. Apple is Google’s potential competitor.
We all pay the cost of a monopolistic ads market with higher prices. Yet given the current state of competition in the search market (in contrast with the competition that might exist in the absence of disincentives caused by these default agreements), the evidence is that most Apple users prefer Google. The default agreements, therefore, direct most consumers to the provider they prefer. Nevertheless, there are less restrictive alternatives to reach said efficiency. While forced choice strategies, such as choice screens, have shown to be ineffective in “leveling the field” among competitors, they can effectively ensure that Google does not hinder potential competition by paying a key potential competitor not to enter the market
Toxic Minimalism on the “Yolo” Court: The Supreme Court’s Dangerous Muddle In First Amendment and Speech-Adjacent Law
Get PDFCare and Custody in Federal Bank Robbery
Get PDFBy the time federal appellate courts began to examine the withdrawal of money from an ATM and the question of to whom that money belongs pursuant to the first paragraph of the Federal Bank Robbery Act (“FBRA”), 18 U.S.C. § 2113(a), the FBRA had been law for over seventy years and automated teller machines (“ATM”) had been in use for around thirty-five years. Since then, the circuit courts have disagreed as to whom the money belongs when an individual forces a victim to withdraw money and give it to the perpetrator. This question stems from competing methods of statutory interpretation and analysis. This Note examines the facts and holdings of the federal appellate court cases that gave rise to this circuit split as well as the analysis in federal and state court cases that have come after the split. Further examination of the case law shows that the courts representing the majority approach—which holds that forcing a victim to withdraw money from an ATM constitutes bank robbery under federal law—not only ignored the intent of Congress when it passed the FBRA, but also erroneously followed an “unwilling agent” theory in their analysis. As such, this Note contends that the circuit minority approach reflects the proper construction of § 2113(a) and demonstrates that, under the textualist and purposive theories of statutory interpretation and the rule of lenity, the action of an individual forcing a victim to withdraw money from an ATM does not constitute federal bank robbery under § 2113(a). This Note also argues that the majority errs in applying the “unwilling agent” theory without properly analyzing § 2113(a). This Note concludes by proposing possible resolutions by the Supreme Court and Congress to resolve this split and discussing how this case study is an exemplar of why courts must clarify existing law or pass new laws to adapt to rapidly changing technology
Artificial Intelligence and Cracks in the Foundation of Intellectual Property
Get PDFOur implicit image of progress and the standards we use to calibrate human contribution to progress are quietly at risk from the onslaught of artificial intelligence (AI). AI has the potential to significantly shrink the pool of creative work that is protectable by intellectual property (IP) law and the range of information that is protectable, as well as shrinking the value proposition of IP regimes themselves.
As society faces this changing landscape, we must tread carefully to distinguish fears about AI from the task of defining the boundaries of intellectual property, whose theoretic concepts aren’t designed to bear such weighty burdens. We also should be wary of our all-too-human instinct to insist on the primacy of our individual contributions to innovation. What we choose to protect must be bounded by the value of the contribution. As that value shifts, in light of what AI makes commonplace, so must our boundaries shift for what we consider extraordinary.
Adaptation does not require reimaging the field. Rather, paths forward can be understood through the Allegory of the Diamond, described in Part IV. Law can limit the supply of products subject to protection, casting the net only around the remarkable, thereby preserving value and facilitating a coordinated body for providing a “Good Housekeeping Seal of Approval.” Together, these two paths would mitigate problems threatening intellectual property regimes. One can predict much wailing and gnashing of teeth as we step into this iteration of human technological interaction. In response, one could borrow a concept from both existential philosophers and their arch opponents, theologians: a little humility in the enterprise is due