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The Path to Standing: Asserting the Inherent Injury of the Data Breach
Get PDFData breaches are on the rise as consumers continue to exchange personally identifiable information for goods and services in sectors from retail to healthcare. In the aftermath of a data breach, it has been difficult for victims of the breach to establish Article III standing to sue in federal courts. The primary hurdle for those seeking a remedy for the theft of their data has been showing that they have suffered an injury-in-fact. Plaintiffs typically assert an injury based on the increased risk of identity theft following a breach. However, courts have divided on whether such an injury satisfies the standing test. For consumers who feel deeply that they have been harmed, a court’s aversion to increased-risk standing is a devastating barrier to redress.
This Note argues that courts should consider a different point of injury. Rather than looking at the risk of future identity theft, courts should analyze standing based on the injury that consumers suffer the moment their data is stolen. Looking to the Supreme Court’s decisions in Clapper v. Amnesty International USA and Spokeo, Inc. v. Robins, this Note argues that the inherent injury of the data breach is an actual, concrete, and particularized injury that is sufficient to confer standing.
Ultimately, shifting the standing inquiry to the inherent injury of the data breach will ensure that meritorious claims are heard in court. The shift is easily implemented—it comports with existing precedent, requires no new action by Congress or the Supreme Court, and is harmonious with the principles that underlie the doctrine of standing. Most importantly, the shift will ensure access to justice for a growing body of consumers who have been harmed by a data breach
The Normative Fourth Amendment
Get PDFFor decades, courts have used a “reasonable expectation of privacy” standard to determine whether a government action is a Fourth Amendment search. Scholars have convincingly argued that this test is incoherent, arbitrary, and incapable of protecting privacy against modern forms of surveillance. Yet few alternatives have been proposed, and those alternatives pose many of the same problems as the current standard.This Article offers a new theoretical approach for determining the scope of the Fourth Amendment. It develops a normative model of Fourth Amendment searches, one that explicitly addresses the balance between law enforcement effectiveness and citizens’ interests inherent in Fourth Amendment law. Drawing on Fourth Amendment jurisprudence and contextual privacy theory, it emphasizes surveillance’s concrete impacts, including its deterrence of lawful activities, interference with relationships and communications, and measurable psychological harms. The normative model’s pragmatic focus allows it to capture the fundamental harms and benefits of surveillance while remaining workable for courts.The normative approach is consistent with the language, history, and purposes of the Fourth Amendment, and its values are echoed throughout the relevant caselaw. It also has important practical advantages over current doctrine: it is adaptable to technological change, encompasses non-privacy harms such as coercion and discrimination, reflects Fourth Amendment values more fully than other approaches, promotes judicial transparency, and is better able to address large-scale surveillance programs. Further, the normative approach can help resolve a variety of difficult Fourth Amendment questions involving emails, internet browsing, smart home technology, financial records, household trash, and more
Sui-Genericide
Get PDFGeneric terms – those that describe a general class of goods or services – are not eligible for trademark protection. Firms have historically gone to great lengths to prevent their trademarks from becoming generic – a fate often referred to as genericide. But in a few rare cases, firms have voluntarily declared certain terms that they have created to be generic, a phenomenon that I refer to as “sui-genericide”. This article explores the little-discussed phenomenon of sui-genericide, both its origins in government-sponsored programs of the mid-twentieth century and its most recent incarnation in the area of technical interoperability standards. Though the voluntary relinquishment of the exclusive rights conferred by patents and copyrights has been studied extensively in the literature, there has been comparatively little scholarly attention to such mechanisms under trademark law. This article examines the potential effects of sui-genericide on producer incentives, follow-on innovation and consumer welfare and considers some of the ramifications of incorporating a sui-genericide doctrine into the law. It concludes by recommending potential measures to enhance the legal recognition of declarations of sui-genericide. These include official consideration during trademark prosecution of “consensus” lists of common terms that are developed by broadly-representative industry groups and the creation of a presumption of genericness for terms that appear on such lists, together with international harmonization of this recognition
America’s Favorite Antidote: Drug-Induced Homicide in the Age of the Overdose Crisis
Get PDFNearing the end of its second decade, the overdose crisis in the United States continues to claim tens of thousands of lives. Despite the rhetorical emphasis on a “public health” approach, criminal law and its enforcement continue to play a central role among policy responses to this crisis. A legacy of the 1980s War on Drugs, statutory provisions that implicate drug distributors in overdose fatalities are on the books in many U.S. jurisdictions and federally. This Article articulates an interdisciplinary critique of these “drug-induced homicide” laws at a time of their increased popularity, expanding scope, and aggressive prosecution. That these policy mechanisms are deployed under the banner of overdose prevention invites a critical public health lens to their reexamination.
After tracing the trajectory of the overdose crisis, this Article examines the role of drug-induced homicide laws as exemplars of U.S. drug policy’s reliance on criminal law to address problematic substance use. An empirical analysis of publicized drug-induced homicide cases documents a rapid and accelerating diffusion of prosecutions in many hard-hit jurisdictions; pronounced racial disparities in enforcement and sentencing; and broad misclassification of friends, partners, family members, and others as “dealers.” In addition to crowding out evidence-based interventions and investments, these policies and prosecutions run at direct cross-purposes to public health efforts that encourage witnesses to summon lifesaving help during overdose events. At a time of crisis, drug-induced homicide laws and prosecutions represent a false prophecy of retribution, deterrence, and incapacitation. These findings support further efforts to demobilize criminal law and criminal justice actors from responding to drug-related harms in the U.S. as elsewhere
American Usury Law and the Military Lending Act
Get PDFIn 2006 Congress adopted the Military Lending Act (“MLA”) to protect active duty military service members and their families from high-cost, predatory loans. The core provision of the statute is a usury limit capping interest rates at no more than 36 percent per annum. The United States Department of Defense finalized regulations implementing the MLA in 2007 and then later issued substantially revised regulations in 2015. The MLA is America’s first modern, national usury law that is applicable to all types of creditors and was adopted after the evolution of our national credit card market. After over a decade, the MLA’s consumer protections have proven exceptionally popular among military service members and their support organizations. The law has not generated significant litigation and has not dried up access to mainstream credit products for military families. In this Article we provide a contemporary historical record of the origin and evolution of the law and evaluate lessons learned from its implementation. In particular, we argue the MLA provides a proven template Congress or individual state legislatures could adopt to better protect military veterans and, indeed, all consumers from predatory, high-cost debt. We conclude with an appendix that includes a model statute Congress or state legislatures could consider adopting to expand the MLA’s protections to cover military veterans and all consumers
A Potential Civil Death: Guardianship of Persons with Disabilities in Utah
Get PDFThis Note tracks guardianship and guardianship-related issues throughout time while discussing reformation efforts and mechanisms to mitigate the damages guardianship may impose upon a person, especially a person with a disability
Disability and Automation: The Promise of Cars that Automate Driving Functions
Get PDFAutomated vehicles present tremendous possibilities for people with disabilities. They also have the potential to open new legal challenges for antidiscrimination law, tort liability, and privacy considerations. The initial discussions of these vehicles have pointed out their potential significance for people with disabilities, while largely ignoring what they might mean for disability law. This Article sets out first steps on the inviting road ahead for people with disabilities as users of automated means of transport
Mandatory Disclosure in Primary Markets
Get PDFMandatory disclosure—the idea that companies must be legally required to disclose certain, specified information to public investors—is the first principle of modern securities law. Despite the high costs it imposes, mandatory disclosure has been well defended by legal scholars on two theoretical grounds: ‘Agency costs’ and ‘information underproduction.’ While these two concepts are a good fit for secondary markets (where investors trade securities with one another), this Article shows that they are largely irrelevant in the context of primary markets (where companies offer securities directly to investors). The surprising result is that primary offerings—such as an IPO—may not require mandatory disclosure at all. This profound insight calls into question the fundamental premises of the Securities Act of 1933 and similar laws governing primary offerings around the world. Reform of these rules could lead to a new age of simplified, low-cost primary offerings to the public, something that is already happening in New Zealand through its equity crowdfunding market
ABA RPTE Conservation Easement Task Force Report: Recommendations Regarding Conservation Easements and Federal Tax Law
Get PDFIn October 2015, the American Bar Association’s Real Property, Trust and Estate Law (RPTE) section convened a Conservation Easement Task Force. The objective of the Task Force was to provide recommendations regarding federal tax law as it relates to conservation easements. This Report is the culmination of the Task Force’s work. Part I of the Report is an Executive Summary of the Task Force’s recommendations. Part II provides the background necessary to understand the Task Force’s recommendations. Part III briefly sets forth the Task Force’s comments on the Tax Cuts and Jobs Act of 2017 as it relates to charitable contributions in general and conservation easement donations in particular. In Part IV, the Task Force recommends that the Treasury publish safe harbor provisions that would be common to most conservation easements. Part V sets forth the Task Force’s recommendations regarding amendments and discretionary consents, the inconsistent use regulations, and furthering transparency in conservation easement administration. Part VI discusses issues surrounding valuation of conservation easements. Part VII contains a brief comment on syndicated conservation easement transactions. Part VIII is the Task Force response to certain proposals the Treasury Department made (most recently in 2016) to change conservation easement law.Appendix A sets forth the “perpetuity” requirements of § 170(h) and the Treasury Regulations.Appendix B offers specific language to facilitate the preparation of key safe harbor provisions