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AI, The New Frontier: An Analysis on Trademark Litigation Strategies in the Face of Generative Artificial Intelligence
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Recourse for Defects and Deception: A Multifactor Duty Test for Online Platforms
Full text linkAmazon is the world’s largest platform for consumer retail sales. It plays a crucial role in matching buyers and sellers and consummating their transactions. It has, for the most part, escaped tort liability for harm caused by defective products sold by third-party vendors on its website. The majority of cases have held Amazon immune from suit because Amazon did not take title to the goods. It was not formally a seller despite the fact that it controls every aspect of the sale from receiving the order, (often) warehousing and shipping the goods, and collecting payment. This formal approach creates a broad immunity from liability, without considering tort principles of accountability. The authors consider various approaches to determining the scope of tort duty and develop a multi-factor test for imposing tort duty that would give Amazon appropriate incentives to assure its customers receive accurate information and have recourse for defective products while allowing courts to differentiate Amazon from lesser online platforms
A Fourth Amendment of People and Places: Three Foundational Claims About Geofencing
Full text linkIn Carpenter v. United States, the Supreme Court held that sufficiently lengthy surveillance of a person’s location was a search that presumptively required a warrant. This holding, the Court wrote, was an application of Katz v. United States’s battle cry that the Fourth Amendment “protects people, not places.”
Unfortunately, that battle cry is increasingly part of the problem. It was suited to Carpenter because it concerned the surveillance of Timothy Carpenter’s movement over 127 days. But police are increasingly supplementing long-term tracking of particular suspects with comparatively short-term tracking of whoever happens to occupy a particular swath of space during a particular span of time. Worryingly, this latter, place-based kind of surveillance seems to sidestep Carpenter’s person-centered rationale, even though it plausibly implicates the values that animated that opinion.
This Article identifies the truth in that worry and suggests a conceptual and doctrinal response. Specifically, I argue for three intertwined propositions that illuminate and bridge the gap between place-based surveillance and person- based precedent. My focal example is geofencing queries.
First, I argue that geofencing queries are not warrant-requiring searches under Carpenter. This is because Carpenter embraces a conservative idea of privacy, according to which, a person’s location is not private but may sometimes reveal that which is. I argue we should not follow this idea and instead hold that persons have a reasonable expectation of privacy in their location, as such. This would entail that geofencing queries presumptively require a warrant.
Second, I argue that geofencing warrants present unique issues precisely because they search arbitrarily specified spaces and times. Analyses of these problems often compare geofencing warrants to Ybarra v. Illinois and all- person warrants, but the jurisprudence that stems from Maryland v. Garrison is more on point. It leads to what I call the public scene principle for judging the appropriate breadth of geofencing warrants.
Third, I argue that even though reverse-keyword searches like the one in People v. Seymour bear some similarities to geofencing queries, they are also crucially distinct in concerning intellectual rather than locational privacy. They should therefore be subject to greater judicial scrutiny
Encryption Backdoors and the Fourth Amendment
Full text linkThe National Security Agency (NSA) reportedly paid and pressured technology companies to trick their customers into using vulnerable encryption products. This Article examines whether any of three theories removed the Fourth Amendment’s requirement that this be reasonable. The first is that a challenge to the encryption backdoor might fail for want of a search or seizure. The Article rejects this both because the Amendment reaches some vulnerabilities apart from the searches and seizures they enable and because the creation of this vulnerability was itself a search or seizure. The second is that the role of the technology companies might have brought this backdoor within the private-search doctrine. The Article criticizes the doctrine— particularly its origins in Burdeau v. McDowell—and argues that if it ever should apply, it should not here. The last is that the customers might have waived their Fourth Amendment rights under the third-party doctrine. The Article rejects this both because the customers were not on notice of the backdoor and because historical understandings of the Amendment would not have tolerated it. The Article concludes that none of these theories removed the Amendment’s reasonableness requirement
Hurt, Hungry, and Handcuffed: How the Prison System Fails Pregnant Women and Their Newborns
Full text linkOver 200,000 women are incarcerated in the United States’ federal and state correctional institutions on any given day. In fact, more women are incarcerated now than ever before, and those rates of incarceration continue to grow at an exponential rate. Despite this large increase in the number of incarcerated women, jail policies, health-care protocols, and important interventions continue to focus primarily on incarcerated men and fail to consider the gender-specific needs of the increasing population of incarcerated females.
This comment discusses ways the United States prison system fails the pregnant women in their care. It discusses four main points including: the lack of proper nutrition of the pregnant mother-to-be while she is incarcerated; the act of shackling in-labor mothers while they are transported to the hospital to give birth and while in active labor and delivery; the aftercare and treatment of the new mother and the newborn infant immediately following the birth; and the detrimental effects of the lack of proper nutrition and care on a newborn infant born to incarcerated mother when the mother did not receive proper nutrition and care while incarcerated and pregnant. This comment advocates for a reform in policy and protocol regarding both federal and state prison systems, in order to afford an incarcerated pregnant mother-to-be proper health care and the children born to incarcerated mothers with a vital healthy start to life
The Anticompetitive Nature of Certificate of Need and Certificate of Public Advantage Laws in the United States
Full text linkCertificate of Need (CON) laws serve as a major barrier to entry in the healthcare market, which already suffers from a high degree of market concentration. Certificate of Public Advantage (COPA) laws give healthcare providers robust antitrust immunity by allowing a merger to go through that would oftentimes be illegal. These COPAs can lead to a reduced quality of care for patients, reduced access to care in the communities where hospitals with COPAs operate, reduced wages for hospital employees in the relevant geographic market, and increased prices for patients seeking care. Given the essential nature of healthcare services, addressing the anticompetitive effects of CON and COPA laws is of the utmost importance.
In places like Northeast Tennessee, the anticompetitive effects of CON and COPA laws are particularly troubling when we consider how little economic power the citizens in the region wield. In 2018, a COPA was granted that allowed the two largest hospitals in the region, Mountain States Health Alliance (Mountain States) and Wellmont Health Systems (Wellmont Health), to form a new entity, Ballad Health Systems (Ballad Health), in a merger. Since the merger in 2018, the citizens of Northeast Tennessee have been incredibly unsatisfied with what Ballad Health has done in their region. Accordingly, the state of Tennessee should eliminate, or at least greatly restructure, their CON laws and require Ballad Health to deliver on their promises that the state and Ballad used to justify the COPA being created in the first place. Additionally, states that are considering eliminating their CON laws or whether to grant a COPA to a hospital should carefully consider the harms that CON and COPA laws can cause