Authors:Zachary Schapiro Abstract: Consumers overwhelmingly believe that companies do not do enough to protect their personal data. As Congress considers federal data protection legislation, it must ensure that any proposed legislation comports with the First Amendment. In 2011, in Sorrell v. IMS Health Inc., the U.S. Supreme Court determined that a Vermont law prohibiting the use of physician-prescribing records for marketing purposes violated the First Amendment. At the heart of Sorrell is that shared data, unlike a traditional commodity like oil, conveys information and is thus First Amendment-protected speech. Since Sorrell, the use and retention of data, specifically personal data, has exploded and is only expected to increase. Nevertheless, the United States currently lacks comprehensive federal data protection legislation. To fill this legislative gap, state legislatures have begun to pass data protection laws. These laws apply either to specific types of data—such as biometric information or Internet service provider customer information—or simply all consumer data. As state and federal legislative efforts advance, lawmakers must consider the lessons from Sorrell to ensure that new legislation protects consumer privacy interests without infringing on data holders’ protected speech. This Note argues that most data protection legislation will likely survive First Amendment scrutiny under Sorrell because the legislation establishes baseline personal data privacy rights while still generally allowing businesses to use personal data so long as they are transparent. PubDate: Wed, 29 Jun 2022 08:34:09 PDT
Authors:Uri Benoliel Abstract: Given the significant social benefits of the big data revolution, an important empirical legal question arises: are government-mandated disclosures designed in a way that allows society to harness the power of the big data that they include' Mandated disclosures normally include an overwhelming volume of data that can be difficult to read and understand for the average individual consumer. If, however, the voluminous data included in the disclosures is machine-readable, such that it can be automatically extracted and processed by computers, disclosures might actually assist consumers in making better-informed buying decisions. Although legal scholars have extensively studied the level of human readability of disclosures, they have yet to study their machine readability. This Article aims to fill this research gap. Using the important U.S. quick-service (fast food) restaurant franchise industry as a case study, this Article examines whether disclosure documents, provided by franchisors to prospective franchisees, have the features of machine-readable data. It specifically tests whether disclosures are provided in an adequate digital format, and include unique data identifiers, structured format, and standardized taxonomy, which can be easily read and processed by computers. The sample of this study includes the financial balance sheets disclosed by one hundred dominant quick-service restaurant chains, including Subway, McDonald’s, KFC, and Dunkin’. The disturbing empirical results of this study indicate that franchise disclosures are normally non-machine readable. Given these results, this Article presents concrete recommendations to policy-makers on how to assure that disclosures in all industries keep up with the big data revolution. PubDate: Wed, 29 Jun 2022 08:34:08 PDT
Authors:Yanbai Andrea Wang et al. Abstract: The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our existing decentralized and uncoordinated governance structures, and the result was devastating: the United States led the world in COVID-19 infections and deaths. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations.This Article makes sense of the early pandemic response by distilling a typology for the predominant intergovernmental relationships that emerged, some conflictual and some collaborative. Governments undermined each other by destabilizing each other’s actions upward (when local governments undermined states), downward (when the federal government undermined states), and across (when the federal government undermined itself). They abdicated responsibility by failing to act. Governments collaborated by actively working together to harmonize policies. And they engaged in bandwagoning to avoid being the first mover in making pandemic policy, opting instead to follow or oppose the leads of others.Despite the seeming chaos of the early pandemic response, these behaviors were the predictable result of well-worn structural and political dynamics. Structurally, pandemic policy lies uncomfortably on two poles of the federal-state division of responsibilities. Ambiguous hierarchies and overlapping policy roles pushed governments toward conflict rather than coordination. Politically, intense partisanship transformed nearly every governance decision into symbolic, two-sided battles, providing a default set of relationships that became organizing principles for the early pandemic response.This Article uses these insights to sketch the contours of a way forward. It proposes a federal pandemic statute that emphasizes role clarity, state independence, and explicit governmental action to disrupt inequality. It additionally advocates for decentralized but inclusive subject-matter networks among federal, state, and local authorities to lessen the pull of partisanship. PubDate: Wed, 29 Jun 2022 08:34:08 PDT
Authors:Samuel G. Bernstein Abstract: In November 2020, the United States Court of Appeals for the Eleventh Circuit, in Otto v. City of Boca Raton (Otto II), became the first federal appellate court to hold that bans on Sexual Orientation Change Efforts (“SOCE”) therapy, also known as conversion therapy, for minors are unconstitutional restrictions of freedom of speech. In reviewing the bans under the strict scrutiny standard, the Eleventh Circuit’s decision in Otto departs from the other circuits’ decisions not only in outcome but also in analysis. The Eleventh Circuit, following recent Supreme Court’s decisions, concluded that courts must apply strict scrutiny and that there was insufficient research suggesting that SOCE therapy was harmful toward children, thus invalidating the therapy bans. This Note reviews the Eleventh Circuit’s majority decision in Otto II, and argues that the court wrongly concluded that the anti-conversion therapy bans for minors fail strict scrutiny. Instead, this Note argues that anti-conversion therapy statutes are one of the rare governmental regulations that can withstand strict scrutiny analysis, and the courts must uphold them. PubDate: Tue, 31 May 2022 12:06:52 PDT
Authors:Connor L. Smith Abstract: Starting in 2016, many countries enacted digital services taxes (DSTs), a turnover tax that applies to digital companies regardless of whether they have a physical presence in the taxing jurisdiction. After the Organization for Economic Cooperation and Development’s Inclusive Framework reached final agreement on its two-pillar solution to tax challenges in a global digital economy, these unilateral measures went on pause. This Note reflects on the recent DST phenomenon, reconceptualizing the DST debate as part of a broader discourse on global governance and globalization. Although DSTs first emerged in developed countries in the European Union, this Note analyzes developing country DSTs against the backdrop of vocal U.S. opposition. This Note demonstrates that the DST discourse confirms long-held suspicions of developing countries regarding the international economic law that shapes the course and outcomes of economic globalization more broadly. Nonetheless, this Note argues that the DST debate and the resulting Pillar One solution reflect important positive changes to the archetypal globalization and global governance narratives. Taking stock of these changes, this Note concludes that DSTs are and were a powerful negotiating tool for developing countries in their attempt to reorient the principles of international tax toward a more equitable distribution of taxing rights and to recognize broader tax goals beyond economic profit. PubDate: Tue, 31 May 2022 12:06:51 PDT
Authors:Matthew B. Lawrence Abstract: Medicare, the social insurance program for the elderly and disabled, is once again facing insolvency. Spending from the program’s hospital insurance trust fund is predicted to exceed the accumulated payroll taxes and other revenues that support the fund within the next five years, leaving Medicare unable to honor some of its obligations. Yet, what happens if and when Medicare becomes insolvent has not previously been explored in legal scholarship and is not addressed in statute or regulation. This Article confronts for the first time the major legal questions that Medicare insolvency would present. It explains what policymakers could do to make insolvency less unfair, less harmful, less likely, and more effective as a tool to promote compromise and cost control in the program. In short, this Article argues for the establishment, by law, of rules to govern Medicare bankruptcy.The Article’s analysis of how an insolvent Medicare program would work reveals several unsettled legal questions, resolution of which would determine insolvency’s harms, who would pay them, and when. Uncertainty surrounding the consequences of insolvency would be problematic from the ex-post perspective because it would increase the unfairness and magnitude of the associated harms. Further, such uncertainty is already problematic from the ex-ante perspective of a program in a five-decade cycle of insolvency because it inhibits compromise and disincentivizes Medicare’s powerful industry constituents from using their influence to promote cost control. In developing this normative insight, this Article for the first time applies the structural, ex-ante theoretical perspective developed in the municipal bankruptcy literature to the law and political economy of a federal spending program. It concludes by addressing the roles of Congress, the Department of Health and Human Services, and courts in clarifying the consequences of Medicare insolvency. Although a partial framework could and should be established by regulation in the short term, this Article calls for a Medicare bankruptcy provision ultimately to be included as a failsafe in future legislation, if and when it comes, to address the current crisis. PubDate: Tue, 31 May 2022 12:06:50 PDT
Authors:Zachary E. Shapiro et al. Abstract: The Americans with Disabilities Act (ADA) is a seminal piece of legislation aimed at protecting those with disabilities from discrimination. The ADA, however, has not been consistently able to integrate people with disabilities successfully into society. With a specific focus on individuals with serious brain injuries, this Article aims to provide insight into the shortcomings of the ADA, specifically focusing on lackluster enforcement of the legislation and its failure to incorporate promising new technologies. These limitations of the ADA are made even more clear in light of the evolution occurring in the understanding of rights and capabilities. As such, the time has come for a new piece of legislation that fully incorporates the advanced technology available to individuals, while promoting a more positive understanding of advancing rights and capabilities. The proposed Americans with Abilities Act (AWAA) will correct the deficiencies in the ADA, ultimately allowing individuals with disabilities to integrate more fully into society. PubDate: Tue, 31 May 2022 12:06:50 PDT
Authors:Elad D. Gil Abstract: How should courts handle cases that implicate foreign relations or national security' What weight should courts give to the executive branch’s view of the law in these matters' To date, one can identify in the jurisprudence of the U.S. Supreme Court no less than four theoretical approaches—varying by the degree of judicial deference due to the executive—that suggest competing visions about the constitutional role of courts in these areas. Each approach has been criticized fiercely for either abdicating the constitutional duty of the courts or obstructing the nation’s pursuit of its security and foreign policy objectives. Absent a clear principle guiding when to apply each approach, courts invoke these approaches intermittently, generating considerable confusion. Current doctrine is missing a framework for mediating tensions between the four approaches. This Article seeks to fill that gap. It draws from the Margin of Appreciation (MoA), a doctrine international courts, especially in Europe, use widely to calibrate the level of deference owed to the principal decision-maker in separation of powers and human rights issues. Compared to parallel doctrines courts traditionally apply, the MoA offers a sophisticated framework for addressing deference claims by the executive. The doctrine provides courts criteria for optimizing the mode of their review, disciplines judicial decision-making, and reduces costs of judicial errors in matters of national importance. This Article reconstructs the MoA as a domestic law doctrine. It makes the necessary adaptations for “domesticating” the MoA and develops criteria for considering deference claims in a variety of foreign affairs and national security matters. In doing so, this Article demonstrates how a domestic MoA approach can generate more nuanced judicial engagement with foreign affairs, encourage deliberative decision-making by policymakers, and promote interbranch dialogue about the role of legal institutions in the high-stakes areas of foreign affairs and national security. PubDate: Tue, 31 May 2022 12:06:49 PDT
Authors:Blair Rotert Abstract: On May 6, 2021, in Shipley v. Helping Hands Therapy, the U.S. Court of Appeals for the Eleventh Circuit held that non-jurisdictional remands must be based on timely motions to remand that assert procedural defects. This holding revisited a split between the U.S. Court of Appeals for the Ninth and Fifth Circuits regarding the proper interpretation of 28 U.S.C. § 1447(c)’s non-jurisdictional remand provision. The Ninth Circuit—much like the Eleventh Circuit but with different reasoning—found that both the raising of the procedural defect and the motion to remand must be timely, whereas the Fifth Circuit held that only the motion to remand must be timely. This Comment argues that the Eleventh Circuit’s approach is preferable because it better employs canons of statutory interpretation and arrives at a conclusion that is supported by legislative intent. PubDate: Fri, 20 May 2022 12:24:09 PDT
Authors:Nicholas J. Whitten Abstract: On July 27, 2020, in Allen v. Wells Fargo & Co., the U.S. Court of Appeals for the Eighth Circuit held that plaintiffs who bring an imprudence claim under the Employment Retirement Income Security Act against a fiduciary of an employee stock ownership plan (ESOP) alleging that the fiduciary failed to act on negative inside information do not meet their pleading burden. In doing so, the Eighth Circuit agreed with three other federal circuit courts that an imprudence claim predicated on an ESOP fiduciary’s failure to disclose negative information is insufficient to survive a motion to dismiss. Only the Second Circuit has held that plaintiffs can survive a motion to dismiss when offering early disclosure as a possible alternative action the fiduciary could have taken. This Comment argues that the Eighth Circuit’s holding is correct because it best protects ESOP plan managers and takes account of ESOP’s unique structure. PubDate: Mon, 16 May 2022 08:40:50 PDT
Authors:Max Doherty Abstract: On May 13, 2021, in United States v. Dominguez, the U.S. Court of Appeals for the Eleventh Circuit joined a pre-existing circuit split regarding the meaning of “sexual activity” under 18 U.S.C. § 2422 and whether that term requires physical contact between the defendant and the victim. The statute prohibits individuals from coercing or enticing others to participate in illegal sexual activity, including when the victim is a minor. The U.S. Court of Appeals for the Fourth and Seventh Circuits previously reached opposite interpretations of the phrase’s meaning. The court in Dominguez agreed with the Fourth Circuit and held that the phrase did not require the defendant to engage or attempt to engage in physical contact with another individual. This Comment argues that the Fourth and Eleventh Circuits reached the correct interpretation of “sexual activity” as not requiring physical contact. PubDate: Tue, 10 May 2022 08:42:02 PDT
Authors:Christine Abely Abstract: This essay argues that the lack of a federal blanket prohibition against ransomware payments undermines the purpose and effectiveness of the U.S. sanctions regime. The U.S. cyber-related sanctions program suffers from an essential problem of timing: often payments to malicious cyber actors are not prohibited until those actors have been named to the Specially Designated Nationals and Blocked Persons List (SDN) maintained by the Office of Foreign Assets Control in the U.S. Department of the Treasury. Yet those actors generally are not so designated until they have been identified as malicious through a completed or attempted attack. Further, the time between a cyberattack and the designation of a party as an SDN is generally not short enough to prohibit the making of a ransomware payment in response to an attack itself. A blanket prohibition against the making of ransomware payments would supplement the OFAC regulations and remedy a structural shortcoming of that regulatory scheme. PubDate: Mon, 09 May 2022 07:09:49 PDT
Authors:Kristen Parnigoni Abstract: In 2020, in United States ex rel. Druding v. Care Alternatives, the United States Court of Appeals for the Third Circuit advanced a broad interpretation of “falsity” under the federal False Claims Act (FCA) to allow conflicting medical opinions on a patient’s medical prognosis as evidence of false certification for hospice eligibility. In doing so, the court rejected a blanket rule that clinical judgments are immune from legal challenge and dismissed an “objective falsehood” requirement because it inappropriately conflated elements of the statute. The holding has important implications in industries with high risk for fraud, particularly the for-profit hospice industry that contracts with Medicare. This Comment argues that the Third Circuit’s liberalization of the falsity element aligns with congressional intent to create broad FCA liability for any attempt to defraud the government. Moreover, the Third Circuit’s approach incentivizes entities that receive federal funding to strengthen internal oversight and compliance programs. PubDate: Thu, 05 May 2022 11:22:35 PDT
Authors:Carina Bentata Gryting et al. Abstract: On November 3, 2021, the Supreme Court heard oral arguments in New York State Rifle & Pistol Ass’n v. Bruen, a Second Amendment case challenging New York’s concealed carry licensing system. The justices’ questions focused not only on who may obtain a license to carry a firearm in public, but also where those with a license may or may not bring their weapons. These questions acknowledged that the Court’s decision in District of Columbia v. Heller provided a carveout for firearms restrictions in “sensitive places,” providing “schools and government buildings” as just two examples. In the fourteen years since Heller, state and federal courts have upheld firearms restrictions in a number of locations under the sensitive places doctrine. However, in anticipation of a wave of sensitive places litigation following the Bruen decision, several conservative scholars now seek to limit the doctrine to only those locations protected by strict government security measures, such as metal detectors and security guards. This article demonstrates that such an approach is inconsistent with our nation’s history of regulating public carry and both historical and present-day case law, including Heller. PubDate: Thu, 05 May 2022 07:32:06 PDT
Authors:John Landzert Abstract: On February 4, 2021, in Tsao v. Captiva MVP Restaurant Partners, LLC, the United States Court of Appeals for the Eleventh Circuit held that the mere existence of a data breach is insufficient to grant plaintiffs standing to sue the company that exposed their personal information. By doing so, the Eleventh Circuit aligned itself with the Second, Third, Fourth, and Eighth Circuits. In contrast, the Sixth, Seventh, Ninth, and D.C. Circuits have granted standing in such cases. This Comment argues that the Eleventh Circuit properly applied Supreme Court jurisprudence at the time it decided Tsao and, in light of more recent Supreme Court decisions, came to the correct conclusion. PubDate: Tue, 03 May 2022 07:45:07 PDT
Authors:Emily O'Hara Abstract: On May 3, 2021, in Simons v. Washington, the United States Court of Appeals for the Sixth Circuit held that a court’s non-binding “strike” recommendation under the Prison Litigation Reform Act (PLRA) did not violate the PLRA or Article III of the United States Constitution. Courts agree that binding strikes are impermissible, but disagree on the underlying reasoning. The Sixth Circuit reasoned that the PLRA, which revokes in forma pauperis filing from indigent prisoner-litigants after three qualifying dismissals, renders binding strikes impermissible before a prisoner accrues three strikes. By resolving the issue using the PLRA, the Sixth Circuit found the constitutional inquiry unnecessary. This Comment argues that the Sixth Circuit’s approach is correct because it aligns with the well-established canon of constitutional avoidance. The Sixth Circuit’s approach also narrows the legal issues in a PLRA ruling, thereby communicating familiar legal principles to under-resourced prisoner-litigants. PubDate: Tue, 03 May 2022 07:45:03 PDT
Authors:Allison Cheney Abstract: On May 7, 2021, in United States v. Bryant, the United States Court of Appeals for the Eleventh Circuit held that the U.S. Sentencing Commission’s policy statement in Section 1B1.13 of the U.S. Sentencing Guidelines binds defendant-filed motions for compassionate release. In its Application Notes, the policy statement provides four “extraordinary and compelling circumstances” that warrant a sentence reduction. Application Note 1(D) is the “catch-all provision” because it states that judges may grant compassionate release for “other reasons” not specifically listed in the preceding Application Notes. Application Note 1(D) states that the Director of the Bureau of Prisons (BOP) defines all “other reasons” under the catch-all provision that qualify an inmate for compassionate release. Before 2018, only the Director of the BOP could file compassionate release motions under 18 U.S.C. § 3582(c)(1)(A). The First Step Act of 2018 amended the statute to allow defendants to file motions too. Because the policy statement still begins with the phrase “upon motion of the Director of the BOP,” courts have since questioned whether it also applies to defendant-filed motions. In a departure from the holdings of the United States Court of Appeals for the Third, Fourth, Fifth, Sixth, Seventh, Ninth and D.C. Circuits, the Eleventh Circuit decided that the policy statement and its corresponding Application Notes apply to defendant-filed motions for compassionate release. Under this interpretation, only the BOP defines the “other reasons” that warrant compassionate release pursuant to Application Note 1(D). This Comment argues that the Eleventh Circuit was incorrect in its interpretation because it disregarded the plain text of the policy statement and erroneously considered the legislative intent of a different statute. PubDate: Mon, 02 May 2022 08:00:24 PDT
Authors:Michele Astor-Pratt Abstract: On April 7, 2021, in Gil v. Winn-Dixie Stores, Inc., the U.S. Court of Appeals for the Eleventh Circuit held that websites are not places of public accommodation pursuant to Title III of the Americans with Disabilities Act. Before the Eleventh Circuit vacated its decision in December 2021, it joined the majority of circuit courts in a split regarding whether Congress intended Title III to apply to websites and other non-physical places. The First, Second, and Seventh Circuits considered Title III’s language broad or ambiguous enough to include web-sites. Conversely, the Third, Fifth, Sixth, Ninth, and Eleventh Circuits held that Title III unambiguously excludes websites and other non-physical places. Although it vacated Gil, the Eleventh Circuit’s reasoning provides valuable insight as to how this court will decide when it hears another Title III appeal in the future. This comment argues that the Eleventh Circuit, with its extremely narrow interpretation of Title III, erred by disregarding the ambiguity of the Act’s language and should have construed the statute in light of Congress’s purpose. PubDate: Fri, 29 Apr 2022 07:54:17 PDT
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