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Parental Rights and Religious Liberty: Examining New Conflicts Between Parents and the State
Get PDFThe Supreme Court has articulated that parents have the unenumerated right rooted in the Fourteenth Amendment to direct the care, custody, and upbringing of their children since the 1920s in such cases as Pierce v. Society of Sisters, Meyer v. Nebraska, Parham v. J.R. and Troxel v. Granville. However, the precise contours of the right have long been uncertain, as has the level of scrutiny to be applied.
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court established a clear threshold for unenumerated rights, that they must be rooted in history and tradition and essential to ordered liberty. The Court noted that its decision does not call into question its line of cases on parental rights. Nevertheless, the question remains: do parental rights meet the Court’s threshold? Are there reasons to believe that parental rights will be affected by the Dobbs decision?
The Dobbs decision comes as a new series of conflicts between parents and the state are arising in education and healthcare around the country. Many of these conflicts over ideas about gender and race. These new conflicts implicate parental rights and are raising questions for courts such as: Who has the primary responsibility for the formation of a child’s identity and values? Do parental rights extend beyond the schoolhouse gate to include instruction and policies in schools? And who gets to decide the treatment of a child’s mental health, including gender distress?
These questions and more have been raised in a series of recent lawsuits against school districts over policies concerning race and gender-based curriculum and policies where challengers have invoked parental rights theories. How do those arguments square with existing doctrine? How might they extend existing doctrine
Trademark Law and Consumer Constraints
Get PDFTrademark law’s focus is on the consumer. Both the trademark literature and the marketing literature, however, tend to assume a consumer with few constraints on economic or cognitive processing resources. For example, scholars have argued that some confusion in the marketplace is not only inevitable but is also an overall positive in that encountering confusion trains consumers to be more resourceful and to learn how to interpret marketing communications more carefully. But not all consumers have the same level of cognitive and economic resources. Disadvantaged consumers—such as those not literate in the English language, those with lower socioeconomic status, and those who face both constraints—might benefit or be harmed by trademark law in ways that are different from the experiences of the lawyers and judges who determine the results of trademark disputes. Drawing on sociological and marketing literature to sketch a picture of the sometimes forgotten consumer, this Article encourages courts to consider whether the consumers at issue in a particular case face constraints that make it more difficult to engage with the modern marketing system. Such consideration might not change the results of any one case, but it will at least bring more attention to when some consumers are left behind
Trust Issues: Using States\u27 Public Trust Doctrines to Advance Environmental Justice Claims
Get PDFThe primary purpose of this Note is to evaluate a new method one could use to bring an environmental justice claim. This Note suggests that the solution can be found within the reinvigorated public trust doctrine. Instead of pursuing environmental justice claims on the federal level, plaintiffs could utilize the sleeping giant that is states’ public trust doctrines. Pennsylvania courts, the pioneers of this new path, held that its public trust should be evaluated using private trust law principles. By interpreting state-created public trusts through the lens of private trust concepts, citizens in a number of states are capable of bringing environmental justice claims, as beneficiaries, against the state, as trustee. Thus, environmental justice claims could evolve into a sophisticated breach of fiduciary duties claim. By raising environmental justice issues in state courts via a breach of fiduciary duty claim, plaintiffs will be able to raise socio-economic and racial issues and at the very least, force a greater evaluation process, without having to demonstrate an intent to discriminate.
This abstract has been taken from the author\u27s introduction
Incitement and Social Media-Algorithmic Speech: Redefining Brandenburg for a Different Kind of Speech
Get PDFAssuming that these scholars are correct and that social media algorithms’ decisions qualify as speech to which the First Amendment applies (social media-algorithmic speech), this Note proposes a legal solution to the increasing problem of violence stemming from social media. This Note asserts that the incitement standard for social media-algorithmic speech should be less stringent because the Brandenburg standard does not apply well to new media, social media-algorithmic speech is much more likely than other speech to actually produce lawless action, and the traditional First Amendment justifications do not apply to social media algorithms’ speech. Therefore, the Supreme Court should tweak the incitement standard for social media-algorithmic speech by altering Brandenburg’s intent and imminence requirements.
Part I of this Note provides relevant history and background about the rationales behind and values of free speech and the current incitement standard. Part II presents the problem at hand, which is that social media-algorithmic speech is uniquely likely to produce lawless action while the Brandenburg standard does not and cannot address this problem sufficiently. Part III discusses a solution to this problem, arguing that the Court should modify the Brandenburg standard as applied to social media-algorithmic speech by altering the intent requirement and relaxing or removing the imminence requirement. Part III also addresses potential counterarguments.
This abstract has been taken from the author\u27s introduction
Private Inequity: Reform Rule 506 to Safely Accommodate Investment by Nonaccredited Investors
Get PDFIn 2012, Congress enacted Title III of the Jumpstart Our Business Startups Act (the “JOBS Act”), which it named the Crowdfund Act, to create an exemption from registration under the Securities Act of 1933 that, in the words of President Barack Obama, would allow “ordinary Americans . . . to go online and invest in entrepreneurs that they believe in.” While perhaps well-intentioned in principle, Regulation Crowdfunding imposes material limitations and costs on the issuer, leading most issuers to conclude that the inclusion of unaccredited investors in a crowdfunding campaign is not worth the complexity and expense. Furthermore, the most heavily utilized exemptions from registration, contained in Rule 506, either expressly prohibit the inclusion of unaccredited investors or incentivize the exclusion of unaccredited investors due to burdensome disclosure requirements. Therefore, unaccredited investors are largely structurally excluded (whether explicitly or implicitly) from the vast majority of investment opportunities in private companies. Indeed, many counsels actively advise their clients not to raise capital from unaccredited investors for the reasons discussed above. This result makes little sense when unaccredited investors have the ability, from a securities law perspective, to invest unlimited capital into high-risk publicly traded “penny stocks” in the over-the-counter (OTC) markets without restriction, but are then functionally excluded in practice from investing an appropriate amount of funds alongside experienced accredited investors in most private offerings. Furthermore, companies conducting a Regulation Crowdfunding offering often resort to such an offering due to failure to raise sufficient capital under Rule 506. Thus, unaccredited investors are often resigned to the “bottom of the barrel” in the world of private offerings, with issuers being disincentivized to include them in higher-quality private offerings due to increased cost and inconvenience.
This Article explores how the exemptions in Rule 506 could be reformed to remove regulatory barriers and disincentives for the inclusion of unaccredited investors while also including aspects of Regulation Crowdfunding and other exemptions that afford reasonable investor protections for unaccredited investors. Specifically, Part I of this Article reviews Title III and Regulation Crowdfunding, as well as both Rule 506(b) and Rule 506(c), to provide context for analysis. Part II of this Article then reviews recent legislation, rulemaking, and guidance that sought to bolster Regulation Crowdfunding to encourage greater utilization by issuers and investors. Finally, Part III of this Article explores how the Rule 506 exemptions could be reformed to allow unaccredited investors a meaningful opportunity to participate in such offerings without penalizing the issuer while still maintaining reasonable investor protections for such investors. Ultimately, this Article recommends reforms to the Rule 506 exemptions that would allow unlimited participation by unaccredited investors while maintaining adequate protections for unaccredited investors through reasonable investment limits and meaningful co-investment alongside accredited investors, rather than defaulting to costly and complex disclosure requirements or requiring intermediaries, such as funding portals or brokers
Keeping Gates Down: Further Narrowing the Computer Fraud and Abuse Act in the Wake of Van Buren
Get PDFInternet-connected devices have become essential parts of personal and professional life. As these devices have grown in importance and prevalence in the workplace, so too have federal computer regulations come into the spotlight. Prior to the Supreme Court’s Decision in Van Buren v. United States, the Circuit Courts of Appeals were split on the interpretation of the “exceeds authorized access” clause of the Computer Fraud and Abuse Act (CFAA), a commonly invoked federal law that imposes criminal and civil liability for computer misuse. Although the Court’s narrow holding clarified the definition of “exceeds authorized access,” the Court did not specify what forms of access restrictions, if exceeded, create a CFAA cause of action.
This Note examines enforceable access restrictions for the purposes of CFAA liability in the wake of the Supreme Court’s Decision in Van Buren v. United States. This Note argues that the unresolved issue of CFAA enforceable access restrictions should be further narrowed to include only technological or code-based limitations. This narrowing would be in line with both the Court’s reading of the CFAA and the original legislative purpose of the CFAA. Because the CFAA was primarily implemented as a computer hacking statute, its application should be limited only to when an individual breaks through a technological barrier to access information and, conversely, the CFAA should not be enforced where an individual breaches merely contractual or other non-code-based access restrictions. Narrowing the CFAA in this way would also ensure heightened cybersecurity measures for companies that manage highly sensitive information and safeguard consumer data privacy in the absence of cohesive U.S. cybersecurity and data privacy laws