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Wear Your Heart on Your Sleeve, Whether You Like It or Not: How Federal Regulation Can Address Advances in Biometric Technology
Full text linkThe use of biometric data for identification and authentication has become a common practice for people and businesses across the world. While these technologies offer a promising means of enhanced security, the emergence of artificial intelligence and machine learning has enabled the analysis of biometric data to reveal some of our most intimate personal information from simple physical characteristics. The rapid advancement of this technology has brought the issue of regulation to the forefront of discussions in both Congress and state legislatures. Accordingly, many states have proposed, and in several instances passed legislation specifically regulating the collection of biometric data.
Despite these monumental technological advances and the myriad of privacy concerns that follow, there is currently no federal act regulating the collection and use of consumers’ and employees’ biometric data. This Comment discusses why it is time to institute a federal regulatory scheme for the collection and use of biometric data. Specifically, a federal regulatory scheme that leverages the best parts of the current state and international regulations, and balances the interests of businesses, employees, and consumers
Interstate Commerce and Personal Jurisdiction in Flux: A Critical Analysis of \u3cem\u3eMallory v. Norfolk Southern Railway Co.\u3c/em\u3e and Its Effects on Business Litigation
Full text linkThis Note examines the implications of the U.S. Supreme Court’s decision in Mallory v. Norfolk Southern Railway Co., advocating for legislative intervention by Congress to mitigate its adverse effects on interstate commerce. The Court revived a pre-International Shoe v. Washingtonprecedent, validating a Pennsylvania statute that imposes general personal jurisdiction on non-resident businesses registered in the state. Justice Gorsuch’s majority opinion, supported by a diverse coalition of Justices, underscored the constitutionality of the statute under the Due Process Clause, with Justice Jackson emphasizing the principle of jurisdictional waiver via business registration. Conversely, Justice Alito’s concurrence, while agreeing on Due Process grounds, raised concerns about the statute’s potential violation of the dormant Commerce Clause, leaving room for future challenges.
This decision has significant ramifications, particularly the likelihood of other states enacting similar statutes, potentially leading to forum shopping and jurisdictional overreach. This Note explores these consequences in detail. Part I dissects the Mallory decision and its various opinions. Part II analyzes the broad criteria for “doing business” and state registration requirements. Part III assesses potential strategies to counteract the decision’s impact, emphasizing the insufficiency of judicial remedies. Lastly, Part IV considers the probability of dormant Commerce Clause challenges, as hinted by Justice Alito. This Note also proposes federal legislative action to establish a uniform standard for interstate personal jurisdiction or restrict such statutes to specific jurisdiction. Ultimately, arguing that Mallory disrupts established jurisdictional principles and conflicts with recent trends limiting general personal jurisdiction to entities’ “home” states, thus complicating the legal landscape established by prior precedents
Caught in the Net: The Magnuson-Stevens Act, Extraterritorial Jurisdiction, and Pompano Fishery Management in Florida
Full text linkThe Magnuson-Stevens Fishery Conservation and Management Act delegates to regional councils the authority to create Federal Fishery Management Plans that regulate fisheries within the federal Exclusive Economic Zone. Should no federal Fishery Management Plan exist, the act allows for the extraterritorial enforcement of a state’s regulations on fishermen registered from that state and physically within the federal Exclusive Economic Zone. This grant of extraterritorial jurisdiction creates gaps in federal regulations that allows states to implement state fishery management plans in federal waters. These state plans can produce confusing results like criminalizing federally legal behavior under the guise of allowable state fishery management enforcement, crippling the fishing industry, or even causing more fish to be harvested from the ocean.
The Florida Fish and Wildlife Conservation Commission promulgated Regulation 68B-35.005, which created the Pompano Endorsement Zone that allows for the use of gill and entangling nets within a designated stretch of water off the gulf coast of Florida that exists only in the federal Exclusive Economic Zone. This regulation sits in a regulatory gap created by section 1856 of the Magnuson-Steven Act that allows for states to extend their jurisdiction into federal waters without regulating any of their own territorial waters. Florida’s application of this regulation, and exploitation of the regulatory gap, has led to the decline of the commercial pompano fishing industry in Florida, and caused more pompano to be harvested from the ocean. This comment explores the broad regulatory framework under the Magnuson- Stevens Act that enables extraterritorial application of a state’s regulations, while also discussing the constitutionality of Florida Fish and Wildlife’s regulations, its impact on Florida’s fishing industry, and possible solutions to the problem generally like establishing a federal Fishery Management Plan for the pompano or a consistency review process that would provide broad protections to all federal fisheries and close the regulatory gap created by section 1856
Integrating Human Rights in Domestic Clinical Practice
Full text linkGiven that the human rights framework contains a rich and evolving body of norms and standards, integrating human rights law into clinical teaching provides new avenues to approach problem-solving. A human rights framework offers additional sources to ground moral and legal claims, as well as new strategies and advocacy targets. These alternatives work to foster creativity and lawyering skills, particularly in areas where domestic law is limited or constraining. Moreover, U.S. advocates have much to learn from global human rights struggles and advocacy efforts and can benefit from engaging in human rights discourse and practice. This article introduces readers to human rights norms and strategies as potential teaching and advocacy tools, providing practical case studies and exploring both opportunities and challenges
Schrodinger\u27s Dissent: The Hybrid Authority of a Dissenting Opinion
Full text linkA dissenting opinion is the Schrodinger\u27s cat of authorities: both the law and not the law simultaneously. Courts and scholars often clarify that a dissenting opinion is not binding. Outside the universe of precedent, that authority defies easy description. Emerging from the pen of a judge wearing a black robe and acting in an official capacity, a dissenting opinion exhibits the form of the law. Yet, beneath that lofty sheen, a dissent exhibits the substance of commentary. A dissenting judge writes to undercut the law, providing a case law coda. This Article describes the traditional categories of authority, primary and secondary, and argues that a dissenting opinion inhabits a hybrid category. As primary authority, a dissent enjoys the same rhetorical leeway as other opinions; as secondary authority, a dissent is an untethered critique of the law. Over the years, dissenting opinions from the Supreme Court provide enduring examples of a dissent\u27s mix of primary and secondary authority
Who Invented It? Streamlining Determination of Patent Inventorship
Full text linkDisputes over inventorship are common in industries where new technology is important. Patents are invalid unless correct inventors are named on the patent, even when all the inventors have assigned their rights to the enterprise applying for a patent. The complexity of modern technology is such that an invention qualifying for a patent rarely is the work of only one individual. Employees and former employees frequently claim that they have been left off patent applications wrongfully. Patent law provides a variety of ways to correct inventorship both while such applications are being prosecuted in the U. S. Patent and Trademark Office and after a patent is issued. Access to these means of correction is unnecessarily limited by unduly restrictive understandings of Article III standing requirements. Often an inventor is denied access to the courts because he has assigned his rights to his employer, even when he challenges the efficacy of the assignment. Several alternatives exist to streamline the application of the standing requirement, including a more robust understanding of the distinction between inventorship and patent ownership, an unambiguous recognition of reputational injury to an inventor as injury in fact, an appreciation of the future interests likely involved in an assignment, and an implementation of mechanisms within a firm that investigate and resolve inventorship disputes