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Property and the Right to Enter
Get PDFOn June 23, 2021, the Supreme Court decided Cedar Point Nursery v. Hassid, holding that laws that authorize entry to land are takings without regard to duration, impact, or the public interest. The decision runs roughshod over precedent, but it does something more. It undermines the important place of rights to enter in preserving the virtues of property itself. This Article examines rights to enter as a matter of theory, tradition, and constitutional law, arguing that the law has always recognized their essential role. Throughout history, moreover, expansions of legal exclusion have often reflected unjust domination antithetical to property norms. The legal advocacy that led to Cedar Point continues this trend, both undermining protections for vulnerable immigrant workers in this case and succeeding in a decades-long effort to use exclusion as a constitutional shield against regulation
Comment: Unpaid Internships and the Rural-Urban Divide
Get PDFIn this Comment, I first note how much the existing literature on unpaid internships under the FLSA focuses on urban contexts. Next, I briefly sketch some of the literature on the rural-urban divide, a topic I argue needs much more analysis from legal scholars in coming years. Third, I show how Morris’s work brings together these two literatures, which to this point have not been in conversation with each other. Finally, I note a few questions Morris’s work raises for future attention
Being in the Room Where It Happens: Celebrating Virginia’s First Female Law Clerks
Get PDFThe first female law clerk was hired in 1944. However, the entry of women into the law clerk profession was met with sexism. The accomplishments of the first few female law clerks also received little attention. This article seeks to rectify this historical injustice by highlighting the accomplishments of Virginia’s first female law clerks: Doris Bray, Jane Caster Sweeney, and Penelope Dalton Coffman. Doris Bray clerked for Fourth Circuit Court of Appeals Judge J. Spencer Bell in 1967. Jane Caster Sweeney clerked for Federal District Court Judge Oren Lewis from 1960 to 1962. Penelope Dalton Coffman clerked for Virginia Supreme Court Judge C. Vernon Spratley from 1966 to 1967. This article highlights their careers, accomplishments, and their impact on the legal profession
Constitutional Confidentiality
Get PDFFederal Certificates of Confidentiality (“Certificates”) protect sensitive information about human research subjects from disclosure and use in judicial, administrative, and legislative proceedings at both the state and federal levels. When they were first authorized by Congress in the 1970s, Certificates covered sensitive information collected in research about drug addiction use. Today, however, they extend to virtually all personal information gathered by biomedical research studies. The broad reach of Certificates, coupled with their power to override state subpoenas and warrants issued in the context of law enforcement, abortion regulation, and other police powers typically under state control, beg the question whether Certificates are constitutional.
This Article, for the first time, examines the fundamental constitutional underpinnings of Certificates and situates them within the context of federal statutory privilege law. In so doing, it makes several contributions to the existing literature. First, after a brief background about Certificates and other congressional action relating to biomedical research, this Article argues that the Certificate statute creates a federal statutory privilege. To date, the language of privilege has been wholly absent from discussions of Certificates and their reach. Yet understanding the Certificate as a privilege provides well understood nomenclature and legal principles for applying the Certificate statute. Second, this Article locates the primary constitutional authority undergirding the Certificate statute in the Commerce Clause. Third, this Article argues that Congress’s power to tax and spend provides further constitutional grounding for Certificates, at least with respect to federally-funded researchers and institutions. For both bases of constitutional authority, this Article maps new territory, yielding clarity where there has previously been uncertainty. Fourth, this Article brings together constitutional doctrines limiting both congressional power and evidentiary privileges to illuminate how these doctrines may require Certificate protections to give way in exceptional cases. In so doing, it bridges traditional constitutional law and evidence law, reaping insights from their intersection from which scholars in both fields may benefit. Finally, this Article considers the implications of this constitutional analysis not only on Certificates, but also on congressional action aimed at regulating human subjects research more generally and on the law surrounding federal statutory privileges
Stay Out of My Head: Neurodata, Privacy, and the First Amendment
Get PDFThe once science-fictional idea of mind-reading is within reach as advancements in brain-computer interfaces, coupled with advanced artificial intelligence, produce neurodata—the collection of substantive thoughts as storable and processable data. But government access to individuals’ neurodata threatens personal autonomy and the right to privacy. While the Fourth Amendment is traditionally considered the source of privacy protections against government intrusion, the First Amendment provides more robust protections with respect to whether governments can access one’s substantive ideas, thoughts, and beliefs. However, many theorists assert that the concept of privacy conflicts with the First Amendment because privacy restricts the flow of information while, on the other hand, the First Amendment is meant to promote the free flow of information. As technology advances and new categories of data are created and stored—like neurodata—it becomes more evident that the First Amendment actually promotes privacy by precluding government intrusion upon the freedom of thought and the right to a free mind.
This Article argues that the First Amendment serves as a more robust source of privacy protections than the Fourth Amendment, at least with respect to government intrusion into an individual’s neurodata, because such intrusion would violate the First Amendment’s right not to speak and the freedoms of thought and belief. As brain-computer interfaces become more prevalent, and produce more neurodata, the First Amendment’s well-established doctrines against compelled speech and its recognition of the freedom of thought ought to extend to prevent government access to an individual’s stored ideas, thoughts, and beliefs. In furtherance of this argument, this Article synthesizes First Amendment scholarship and proposes the Privacy Theory of the First Amendment to illustrate how the First Amendment broadly protects the privacy interests of individuals
A Miscarriage of Justice: How Femtech Apps and Fog Data Evade Fourth Amendment Privacy Protections
Get PDFAfter the fall of Roe v. Wade, states across the country have enacted extreme abortion bans. Anti-abortion states, emboldened by their new, unrestricted power to regulate women’s bodies, are only broadening the scope of abortion prosecutions. And modern technology provides law enforcement with unprecedented access to women’s most intimate information, including, for example, their menstrual cycle, weight, body temperature, sexual activity, mood, medications, and pregnancy details. Fourth Amendment law fails to protect this sensitive information stored on femtech apps from government searches. In a largely unregulated private market, femtech apps sell health and location data to third parties like Fog Data, who in turn sell this information to police departments. According to traditional interpretations of the third-party doctrine, all reasonable expectations of privacy are eliminated when app users click “accept” to obscure privacy policies. Instead, the Supreme Court should follow the trajectory of their recent decisions and treat modern surveillance techniques differently from traditional government searches. The Court must extend Carpenter’s reasoning to Fog Data because these services allow police to search billions of location data points and instantly discover personally identifying information. Congress can also strengthen privacy protections by adopting comprehensive bills that expand health privacy coverage and prevent the government from purchasing location data from private companies
Artificial Intelligence and Transformative Use After \u3cem\u3eWarhol\u3c/em\u3e
Get PDFThe Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith clarifies the scope of transformative use and the role of these uses in the fair use analysis. This important case has implications for a fair use analysis of artificial intelligence. This article evaluates the interaction between copyright law’s fair use doctrine and typical sources and uses for artificial intelligence. In other words, the article will assess whether or not the use of copyrighted material to “train” AI programs—AI inputs—and the products of AI programs—AI outputs—are likely to found to be transformative in light of the Warhol framework. This article assesses the potential fair use analysis for generative AI applications in light of Warhol’s analytical framework. The central question in Warhol is the scope of transformative use versus a use that is derivative and which supplants a market for the original copyrighted work. Whether the use of copyrighted material to “train” AI programs and the products of AI programs are likely to found to be transformative in light of the Warhol framework is an intensely factual inquiry. This article concludes that the use of copyrighted material as inputs for training AI programs is — by itself—likely to be found to be a transformative fair use in most circumstances. The more difficult question is how AI outputs are analyzed. Fair use is necessarily a case-by-case inquiry. In light of cases like Warhol and Google v. Oracle, the analysis will turn on a series of considerations that are identified in this article. It is likely that the fair use question will be litigated frequently in the context of AI outputs, which can involve myriad factual scenarios
The Perils of Privatization: Exploring the Side Effects of Privatized Correctional Health Care in Favor of a Public Delivery Model
Get PDFOn July 16, 2020, Judge Roslyn Silver of the U.S. District Court for the District of Arizona set a trial between Arizona’s Department of Corrections and a class of Arizona’s prisoners alleging grossly inadequate health care in the state’s prison system. Arizona, like more than half of the states in the U.S., has outsourced prison health care to private correctional healthcare providers. While correctional healthcare providers win states over with promises of cost-effective care and limited liability, ever since the emergence of the correctional healthcare industry in the 1970s, problems with privatized health care in jails and prisons have persisted, creating legal and ethical concerns about the role of forprofit providers in public correctional institutions. This Note examines the rise of the correctional healthcare industry and brings awareness to the inherent flaws of the private delivery model. This Note also provides a case study of New York City’s successful departure from privatized correctional health care to illustrate the benefits, capabilities, and policy-driven goals of a public delivery system led by invested stakeholders. This Note then concludes with an argument supporting the deprivatization of correctional health care in favor of public alternatives and hybrid models. This Note contends that only states and public interest partners can ensure adequate oversight and delivery of correctional health care that meets constitutionally acceptable levels. States, and states alone, should take responsibility and accountability for the health, safety, and well-being of their incarcerated populations
\u3cem\u3eCitizens United v. Federal Election Commission\u3c/em\u3e, in Feminist Judgments: Corporate Law Rewritten (Anne M. Choike et al. eds., 2023)
No full textCorporate law has traditionally assumed that men organize business, men profit from it, and men bring cases in front of male judges when disputes arise. It overlooks or forgets that women are dealmakers, shareholders, stakeholders, and businesspeople too. This lack of inclusivity in corporate law has profound effects on all of society, not only on women\u27s lives and livelihoods. This volume takes up the challenge to imagine how corporate law might look if we valued not only women and other marginalized groups, but also a feminist perspective emphasizing the importance of power dynamics, equity, community, and diversity in corporate law. Prominent lawyers and legal scholars rewrite foundational corporate law cases, and also provide accompanying commentary that situates each opinion in context, explains the feminist theories applied, and explores the impact the rewritten opinion might have had on the development of corporate law, business, and society.https://scholarlycommons.law.wlu.edu/fac_books/1171/thumbnail.jp