In 1975, the Individuals with Disabilities Education Act (IDEA)
established a substantive right to “free appropriate public education”
(FAPE) for children with special needs. Since that time, the right to FAPE
has primarily been defined by — and enforced through — the IDEA’s robust
set of procedural safeguards and avenues for private enforcement. However,
the Act’s emphasis on procedure over substance has prevented the
realization of meaningful educational programming for a significant
number of special needs students. This Note illustrates the fundamental
tension between the IDEA’s substantive and procedural goals by contrasting
the legislative and judicial vision of the IDEA with the current state of
special education in rural public schools.
Part II gives a general overview of frameworks for policy implementation.
Part III provides a background in the evolution of special education law,
with a focus on the role that courts have played in the development of special
education policy. Part IV argues against the IDEA’s proceduralist approach
by demonstrating how this approach fails to account for the challenges
faced by rural students at every stage of the special education process,
including eligibility for special education, the formulation and enforcement
of individualized education plans, and the provision of feasible alternatives
to students’ initial public school placement. Finally, Part V argues that the
current framework for the provision of special education should be modified
to include more effective means for enforcing students’ rights and should
incorporate the “inclusive schools” approach, which allows for a more
substantive, collaborative, and holistic approach to providing FAPE.
In May 2019, the American Law Institute proposed adopting a Restatement of the Law of Consumer Contracts. In it, the Restatement’s
Reporters suggested a “grand bargain,” which removed the requirement that
consumers meaningfully assent to contractual terms and compensated for
this by adding teeth to ex post remedies already available to consumers. The
proposed Restatement drew immense criticism from consumer advocates,
who argued both that meaningful assent was not disappearing in the
common law, and that the ex post remedies did not go far enough to cure
consumer harms. In the wake of this critique, the draft was shelved for
This Note argues that consumer advocates’ approach to critiquing the
Restatement is misguided. Contrary to the position of consumer advocates,
the Reporters were fundamentally correct in identifying the gradual demise
of assent as a reality in consumer contracts. However, this Note
acknowledges that ex post review procedures, such as the application of the
unconscionability doctrine, are inadequate mechanisms for redressing
Instead, this Note argues that consumer groups are better served by
focusing on ex ante regulation of contract design, which would ensure that
consumers are presented with fair contracts. This Note suggests that
consumer advocates should focus their attention on the adoption of more
rigorous Unfair and Deceptive Acts & Practices statutes on the state level.
Provided that the right combination of prohibited terms, administrative
updating mechanisms, and enforcement provisions are included, such state-level regulation would better protect consumers from unfair adhesive contracts.
Collection and use of big data drive the modern information economy.
While big data can produce valuable innovations, it also comes with perils
for consumers. In particular, consumers have little ability to protect their
privacy online and are unnerved by the hyper-targeted advertising to which
they are subjected. In response to these concerns, American states have
begun enacting general data privacy laws similar to those passed in Europe.
At the same time, the United States Supreme Court has grown wary of laws
attempting to restrict companies from distributing and using data for
advertising purposes. For instance, in Sorrell v. IMS Health, the Court
found that a Vermont statute aimed at preventing targeted advertising by
pharmaceutical manufacturers violated the commercial free speech
doctrine. Since Sorrell, the constitutionality of data privacy statutes has
This Note argues that data privacy laws that empower consumers to
meaningfully protect their privacy by opting out of unwanted data collection
do not violate the commercial free speech doctrine. Part II defines data
privacy and summarizes the objectives current data privacy laws seek to
achieve. Part III analyzes commercial speech jurisprudence before and after Sorrell and discusses the effect of Sorrell on commercial free speech
jurisprudence and data privacy law. Part IV argues that government
interest in empowering consumers by giving them meaningful choices in their online privacy is important enough to survive scrutiny under the post- Sorrell commercial free speech paradigm.
The Supreme Court’s decision in Carpenter v. United States, which
requires law enforcement to obtain warrants to access historical cell-site
location information, raises new questions about the application of the
Fourth Amendment to biometric technologies, such as facial recognition
technology (FRT) and voice recognition technology (VRT). While “no single
rubric definitively resolves which expectations of privacy are entitled to
protection,” this Note seeks to demonstrate that current applications of the
rubric offered in Carpenter — considering voluntariness, invasiveness,
comprehensiveness, ease of data collection, and retrospectivity — are
inadequately flexible. To safeguard the private and intimate details that
ongoing “seismic shifts in digital technology” continue to reveal, the courts
need a bolder, more robust framework for Fourth Amendment protection.
Using FRT and VRT as illustrative examples, this Note argues that
analyses of reasonable expectations of privacy involving biometric
technologies should recognize the right to anonymity as an integral part of
the Carpenter inquiry.