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Closing the Reproductive Divide: Expanding Access to Fertility Services Beyond the White Nuclear Family
Get PDFBenchmarks for Reducing Civilian Harm in Armed Conflict: Learning Feasible Lessons About Systemic Change
Get PDFBanishing Federal Overstep: Why Protecting Tribal Sovereignty Justifies a Narrow Reading of the Indian Civil Rights Act
Get PDFAt the heart of this Note is the need to preserve Tribal sovereignty. This Note focuses on a lesser-known issue currently being debated in circuit courts: whether Tribes should be permitted to banish Tribal members from their ranks without submitting to the scrutiny of federal courts. Recently, there has been a resurgence in banishment discussions in Indian Country. To justify banishment, an individual’s actions must reach the point that they disrupt Tribal cohesion, the Tribe’s overarching cultural identity, and its bylaws. Banishment comes under federal review when banished individuals file a writ of habeas corpus under section 1303 of the Indian Civil Rights Act (ICRA). This provision provides that habeas review shall be available to any person to test the legality of their detention by an Indian Tribe. In 2022, the Tenth Circuit decided Chegup v. Ute Indian Tribe of Uintah & Ouray Reservation, which addressed whether the banishment of a Tribal member counted as “detention” within the meaning of the habeas provision of the ICRA. If the court agreed with the banished Tribal members that banishment constitutes “detention,” then federal courts could impose themselves on issues of Tribal membership. However, if the court agreed with the Tribe that banishment does not include “detention,” then the banished individuals would have no further federal remedy. The Tenth Circuit did not formally rule on this issue, but the court articulated it in a way that highlighted the relevant circuit split and opened the door for future courts to consider the issue. Chegup also brought to the forefront the debate of Tribal sovereignty versus individual civil rights. This debate comes down to the fact that some individuals feel that they have been unjustly banished and attempt to circumnavigate a Tribe’s sovereign decision-making power regarding membership by seeking a remedy from the federal courts instead. Should the habeas provision of the ICRA be read broadly to include banishment as “detention,” thereby preserving individual civil rights and the individuals’ right to remedy? Or should the provision be read narrowly so as not to include banishment, thereby preserving the critical practice of Tribal sovereignty and Tribal control over membership decisions? This Note argues the latter. It is reasonable to ask if banishment constitutes a severe restraint on liberty and is subject to habeas review. However, if Tribes do not have control over determining Tribal membership, then their unique sovereign powers are significantly undermined. This must be avoided even if a few banished individuals, while still provided with procedural fairness through the Tribal court process, are left without legal remedy in federal court
An (Un)reasonable Expectation of Privacy? Analysis of the Fourth Amendment When Applied to Keyword Search Warrants
Get PDFIn the “digital age,” perpetual changes in technology have brought increased opportunities for exchanges of personal data between individuals and third parties. Often, this information-sharing is a necessity to fully participate in modern society. Yet, investigative techniques such as reverse keyword search warrants have called into question the applicability of existing Fourth Amendment jurisprudence as applied to digital privacy. While societal expectations of personal privacy have evolved alongside technology, Fourth Amendment jurisprudence has not. The recent Carpenter decision signals a growing judicial concern for digital privacy, yet detrimentally cabins itself to extraordinarily specific circumstances, and effectively maintains the supremacy of the third-party doctrine. When applied to new investigative techniques like reverse keyword search warrants, the narrow defenses of Carpenter and the third-party doctrine together create a lapse in protection, leaving large swaths of digital data generated by emerging technologies vulnerable. This Note aims to demonstrate this gap in protection by comparing the data uncovered by reverse keyword search warrant techniques to the CSLI data sought in Carpenter, ultimately arguing for increased legislative action to protect against intrusions into digital privacy, thus closing the gap
Grandpa Sherman Did Not See Google Coming: Evolutions in Antitrust to Regulate Data Aggregating Firms
Get PDFThere is a crisis of confidence regarding the regulation of Google and other Big Tech firms. In 2021, over fifty-five percent of Americans believed that under-regulation of Big Tech has resulted in these companies having too much economic influence. Seventy-five percent are not confident that government will hold companies accountable when they misuse data. This Note examines Google as the poster child for Big Tech’s use of data aggregation as an anticompetitive tactic. Thanks to Google’s vast social data collected across many platforms, it has near-perfect market intelligence. This intelligence enables profitable predictions in markets currently occupied by Google and adjacent markets Google has yet to enter. Antitrust enforcers and scholars have examined Google’s anticompetitive behavior in narrowed markets like digital search advertising and mobile phone app stores. Yet this kind of analysis does not fully encapsulate Google’s business model, and thus fails to provide impactful remedies that would address the fact that Google’s harm to consumers comes from anticompetitive conduct in multiple submarkets, ranging from search advertising to smartphone operating systems. To combat this crisis of confidence, antitrust enforcers should cite the data aggregation market as the relevant market in litigation against Google. Additionally, Congress should expand the consumer welfare standard to include non-monetary harms and recognize that conduct that obscures a consumer’s ability to compare one firm’s product features against another’s is anticompetitive
What We Teach When We Teach Legal Analysis
Get PDFTraditional legal education, especially in the first year, leaves students with the impression that law is neutral and objective, and their job, as lawyers, is to read cases, pull out rules, and sift facts into legal categories. This training contributes to a student’s sense that law is natural and normal, and, to quote Robert Gordon, “usually OK and just,” instead of invigorating her imagination as to law’s possibilities and giving her the tools to push for legal change. The traditional approach often leaves students blind to the injustices baked into law and unprepared to become lawyers who create change. Law schools thus need to teach not only traditional legal analysis, but also how to disrupt and how to create. First, they should disrupt students’ sense that law is neutral and objective. Students need to see legal rules not as fixed and natural, but as flexible and value-laden. They need to see opinions not just as statements of what the law is, but as one vision of many possible ways law could be. A disruption legal analysis pedagogy trains students to adopt an outsider’s gaze, to unearth the bias and assumptions often embedded in the law, and to imagine other possibilities. But disruption alone is not enough. Such an approach helps students see the problems in law, but gives them few tools for fixing it. Law schools must also teach students how to create, how to use the traditional tools of legal reasoning to achieve change. This approach accepts the rhetoric, structure, and go-to moves of legal thinking as it exists, acknowledges their failures and weaknesses, and aims to arm students with the skills to birth new rules, cement new baselines, and create new approaches to legal problems. Teaching with both strategies in mind will help the scales drop from students’ eyes—they will be clear-eyed about the system’s flaws and failings—while still preparing them to operate within it and change it from the inside. This Article encourages professors to incorporate disruption and creation into their legal analysis pedagogy and provides specific strategies and exercises for bringing out these themes in the classroom and on exams
The Public Stakes of Consumer Law: The Environment, the Economy, Health, Disinformation, and Beyond
Get PDFConsumer law has a conflicted and narrow identity. It is most immediately a form of business law, governing market transactions between people and companies. Accordingly, the microeconomic analysis of markets is the dominant influence on consumer law. But consumer law is often described as, and assumed to be about, protecting the consumer, which implicates small instances of individual injustice. Both of these lenses are valuable but reflect limited awareness of the field’s importance among lawmakers, scholars, and the public. We are all consumers. Exchanges between consumers and corporations contribute to global warming when people buy energy-inefficient household appliances; drive public health epidemics, like obesity, due to harmful food purchases; and widen wealth gaps, when low-income or minority households are subjected to predatory sales practices. Yet despite these stakes, consumer law has struggled to gain intellectual or popular appeal, in contrast to the explosion in attention to antitrust as a mechanism for holding companies accountable. Unlike workers, veterans, and businesses, consumers have neither a department at the federal level nor a committee focused on them in either the House or the Senate. Many law schools do not even offer a consumer law course. This Article reveals the risks of marginalizing consumer law and calls for an institutional and conceptual reconstruction of the field. Consumer law always mattered, but recent shifts in legal institutions, markets, and technologies have further elevated its importance. To reflect that societal importance, and to return the economic analysis to its roots, a public priority principle should serve as consumer law’s analytic lodestone. Institutional reforms are also worth considering, such as the creation of legislative committees and a Cabinet position. At a minimum, it is time to recognize that consumer law has a meaningful role to play in the struggles to preserve the environment, foster health, promote prosperity, and strengthen democracy