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By Melanie Mignucci

In the modern workplace, employers commonly subject their workers to electronic monitoring and algorithmic management practices. Under the National Labor Relations Act (NLRA), this surveillance does not comprise an unfair labor practice because it is not “out of the ordinary.” But this interpretation is mistaken: Algorithmic management’s chilling effect on organizing is the same or worse than that of a manager monitoring emails for hints of a union campaign—a long-established unfair labor practice. The National Labor Relations Board’s (NLRB) former General Counsel has proposed a framework that would make this kind of surveillance presumptively unlawful and require businesses to give notice of the surveillance to employees. This Note argues that the NLRB should go further to address the threat that algorithmic management poses to workers’ right to organize. The Board should find algorithmic management practices unlawful and issue a narrow bargaining order to remedy electronic surveillance’s infringement on workers’ rights under Section 7 of the NLRA. Part I of this Note charts the evolution of algorithmic management and its treatment under existing legal regimes. It illustrates how these practices chill organizing efforts and thus violate Section 8(a)(1) of the Act. Part II proposes remedying this unfair labor practice with a narrow bargaining order. Part III addresses impediments to adopting this framework.

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By Gabriela Landolfo

The legacy of imperialism thrives in the modern European museum. From Alutiiq masks in Berlin to a Pawnee Chief’s remains in Stockholm, museum displays resign tribal emblems to the same fate as the people who produced them: forcibly separated from their culture and assimilated into a foreign one. Although U.S. courts recognize a cause of action under the Foreign Sovereign Immunities Act (FSIA)’s expropriation exception for Nazi-era stolen art claims, these same courts refuse to recognize jurisdiction over repatriation claims for stolen Native American art.

The Art Museum Amendment, a 2016 reform to the FSIA, stands to resolve these jurisdictional challenges by providing a viable repatriation avenue for stolen Native American art. This legislation, this Note argues, establishes an avenue for “targeted and vulnerable groups” to seek retribution against foreign governments who stole work “as part of a systematic campaign of coercive confiscation or misappropriation.” This exception, when read in accordance with the Indian ambiguity canon of statutory interpretation, provides a path toward the return of Native American art and artifacts from foreign museums.

Part I of this Note surveys how the FSIA, the Native American Graves Protection and Repatriation Act (NAGPRA), and the Indian ambiguity canon are used to further indigenous repatriation efforts. Part II demonstrates how these statutes and interpretive methodologies, alone, are insufficient to repatriate Native American stolen art. Part III advocates for interpreting the FSIA through the Indian ambiguity canon, leveraging NAGPRA’s acknowledgement that Native Americans constitute a “targeted and vulnerable group” to establish a repatriation avenue for stolen Native American art under the FSIA.

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By Seth McDowell

For decades, the Supreme Court has favored arbitration agreements in employment and struck down state attempts to limit their use. In so doing, the Court has often cited the Federal Arbitration Act’s (FAA) supposed “liberal federal policy favoring arbitration.” In its 2021–2022 term, the Court broke with prior precedent, signaling that future arbitration decisions will be rooted in the text of, rather than the policy behind, the FAA. This shift leaves room for states to pass statutes which prohibit employers from requiring employees to sign arbitration agreements. One such statute, California’s A.B. 51, was only narrowly struck down as preempted by the Ninth Circuit in Chamber of Commerce v. Bonta, which was decided prior to the Supreme Court’s textualist shift on the FAA. On a strict textualist reading, the FAA only regulates contracts already in existence and says nothing about behavior leading up to the formation of a contract. Thus, statutes like A.B. 51 are now likely to survive preemption due to the Court’s newly textualist position on the FAA. This Note argues that states seeking to limit the use of arbitration agreements in employment should pass statutes like A.B. 51 and can expect that such laws will not be preempted.

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By Michael Sosnick

Delaware courts recognize that corporate directors have a duty of good faith, which includes an obligation to avoid knowingly violating the law, even if doing so could increase profits. In re Caremark International Inc. Derivative Litigation and Stone v. Ritter extended liability to situations in which directors fail to oversee apparent legal risks.

The National Labor Relations Board (NLRB) has repeatedly found unfair labor practices (ULPs) against major corporations such as Amazon and Starbucks during employee unionization efforts, but because of gaps in the enforcement potential of federal labor law, these ULPs largely continue unchecked. This Note argues that a corporation’s directors violate their duty of good faith when the NLRB continually finds ULPs against it. Under the Caremark framework, a history of ULP determinations, ULP settlements, walkouts, or strikes would be red flags that the directors then consciously fail to monitor. While recovery may be insignificant, Caremark claims, brought by plaintiff-shareholders who want corporations to comply with their obligations towards unions, may deter future ULPs and spark organizational change supportive of workers’ rights.

Part I documents the prevalence of anti-union ULPs, outlines the duty of good faith in Delaware corporate law, and briefly explains Caremark claims. Part II describes a Caremark claim for repeated ULPs. Part III highlights the benefits of institutional shareholders bringing such claims and offers policy proposals that would increase the power of shareholders to hold corporations accountable for illegal acts.

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By Charlotte G. Cooper

Foreign governments breach national borders through physical and digital means to surveil, coerce, harass, kidnap, and kill members of diaspora and exile communities. This phenomenon is known as transnational repression (TNR). No longer an exceptional tool, TNR is becoming a normalized practice used to silence citizens abroad. This tool of global authoritarianism violates host countries’ sovereignty and commitments to positive individual rights. Yet, democracies like the United States have been slow to launch a coordinated criminal response.

This Note critiques U.S. federal prosecutors’ response in the absence of laws directly criminalizing TNR and proposes a more targeted approach. Part I documents the rise of TNR in the United States, the methods that “Perpetrator States” deploy against U.S. persons, and the detrimental effect TNR has had on U.S. rule of law and constitutional freedoms. Part II reveals how federal prosecutors have relied on 18 U.S.C. § 951—the “espionage lite” statute—to charge agents acting subject to the direction or control of a foreign government. Despite some litigation success in charging Section 951, it has proven to be an inadequate basis to mount a statutory response to TNR. The statute fails to reach key methods of TNR, discourages uniformity in application, endangers certain diplomatic relations, compounds confusion in identifying repression, and fails to express the gravity of the offense. After evaluating these infirmities, Part III argues for adopting a TNR statute that addresses the need to criminalize core TNR activity while incorporating elements of a bureaucratic approach. Given the potential unintended effects of overcriminalization, this approach allows penal law to take a real but constrained role in countering TNR.

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By Eitan M. Ezra

It is getting harder for executive branch agencies to win in court. One prominent reason for the harsh climate that agencies face is the Major Questions Doctrine, which has grown more important in statutory interpretation since the Supreme Court decided West Virginia v. EPA. If the Supreme Court applies it to an assertion of power by the executive branch, the odds are that the executive action will be enjoined. Some scholars thus fear that the Major Questions Doctrine will dangerously constrain the president’s conduct of foreign affairs. This Note argues that those predictions are misguided. It identifies a body of law in which the Supreme Court applies a “Reverse Major Questions Doctrine” to give presidents broad discretion when they interpret statutes touching on foreign affairs or national security.

Typically, the Major Questions Doctrine leads the Court to interpret a statute in a way that confers narrower authority to the agency at issue. When the president exercises some statutory delegation of power that implicates foreign affairs or national security, however, the Supreme Court selects the broader of two possible interpretations. One reading of the Major Questions Doctrine is that it operates—intentionally or not—to avoid a constitutional nondelegation problem. But the Reverse Major Questions Doctrine does the opposite. By broadening the scope of delegated authority, the Reverse Major Questions Doctrine forces the Court to confront whether the statute violated the nondelegation doctrine, often alongside other constitutional issues like due process or the First Amendment. The Reverse Major Questions doctrine allows the Court to avoid a different constitutional problem: defining whether the President has independent power under Article II of the U.S. Constitution over the asserted action.

Part I of this Note describes the Major Questions Doctrine in more detail and explains why some commentators believe it may or may not apply to foreign affairs delegations. Part II describes the Reverse Major Questions Doctrine by focusing on the constitutional pressures that created it and, through a series of case studies, argues that it may already be implicit in landmark Supreme Court decisions. Part III explores the normative implications for the Reverse Major Questions Doctrine and argues ultimately that its explicit recognition would be helpful for both lawyers and courts.

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By Elana Egri-Thomas

The data privacy landscape in the United States is ineffective and fragmented across state lines. There is no federal data privacy law or data protection administrative agency. The state data privacy laws that do exist are heavily influenced by the tech industry and ignore substantive harms to consumers. Privacy scholars argue that given the power imbalance and information asymmetry between consumers and companies, consumers cannot exercise meaningful control over their data while online.

Missing from the conversation surrounding potential solutions to the data privacy landscape is the National Institute of Standards and Technology (NIST) and the NIST Privacy Framework. Due to the lack of federal action, companies use the Privacy Framework as a baseline for their privacy programs, and at least one state privacy law incorporates it. But the process by which NIST created the Privacy Framework was limited, failing to consider structural harms or equity considerations resulting in an industry-friendly framework.

This Note argues that NIST should redevelop the Privacy Framework to address social harms and alleviate the need for federal action by engaging with all relevant stakeholders and considering critiques and potential alternatives to current data privacy laws. Part I of this Note addresses the current data privacy landscape. Part II surveys critiques of data privacy laws. Part III outlines the history and purpose of NIST, the creation of its Privacy Framework, and the role NIST could play in the data privacy realm. Part IV recommends a process NIST should engage in to reformulate the Privacy Framework.

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By Joshua Kipps

In Bostock v. Clayton County, the Supreme Court ushered in a new era of employment law by holding that workplace discrimination against gay and transgender people violates Title VII’s prohibition of discrimination because of sex. The Court reached this historic result by using textualism to interpret Title VII and applying a simple “but-for” test. By focusing on individuals and stripping away linguistic labels, the Court created a brightline rule for future courts: if changing an employee’s sex changes the employer’s discriminatory decision, then the decision was because of sex. While this decision modernized discrimination doctrine to the benefit of millions of LGBTQ+ Americans, it did not address whether its protections would extend to two groups: bisexual and nonbinary people. The decision also expressly left open whether it would prohibit sex-based dress codes and bathroom policies.

This Note argues that Bostock’s reasoning does not necessarily extend protections to bisexual and nonbinary people in every case. The decision does, however, render workplace enforcement of sex-based dress codes and bathrooms impermissible sex discrimination. This Note first explains the state of pre-Bostock Title VII jurisprudence and the Bostock decision, then analyzes Bear Creek, a Northern District of Texas court’s failed attempt to answer Bostock’s open questions. Finally, to remedy the implications of Bostock’s limitations and Bear Creek’s errors, this Note analyzes how bisexual and nonbinary individuals can structure their sex discrimination arguments to win in court.

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By Daniel S. Anduze

On July 2, 2024, the Supreme Court of the United States granted certiorari in Free Speech Coalition v. Paxton—a case involving a First Amendment challenge to Texas H.B. 1181. That statute, aimed at limiting youth exposure to sexual material online, requires pornography companies to verify that their users are at least 18 years old. Since 2023, 18 other states have enacted nearly identical age-verification laws with surprisingly bipartisan majorities. As of this Note’s publication, analogous legislation is pending in at least 17 additional states. But according to the pornography industry, because these laws burden substantial amounts of protected speech, courts must apply strict scrutiny—a demanding standard which the laws allegedly cannot survive, especially in the wake of Reno v. ACLU and Ashcroft v. ACLU II.

This Note challenges that argument. It argues that recent age-verification laws pose no serious First Amendment concerns and should be upheld against the industry’s legal challenges. Contrary to the industry’s suggestions, recent age-verification laws were carefully crafted to avoid the constitutional pitfalls of the provisions of the Communications Decency Act and the Child Online Protection Act that were invalidated in Reno and Ashcroft II. The recent legislation—including Texas H.B. 1181, the focus of this Note—represents a concerted effort by state legislators of all political stripes to incorporate the judicial guidance previously provided by the Supreme Court. While this Note is sympathetic to a majority of the government’s proffered defenses of the laws—involving the obscenity exception to the First Amendment and rational basis review under Ginsberg v. New York—it ultimately concludes that strict scrutiny is the appropriate standard of review under existing precedent. Texas H.B. 1181, and all analogous laws, still survive this demanding standard of review because they (1) serve the compelling governmental interest of protecting children from online pornography, (2) are narrowly tailored to achieve that interest, and (3) are the least restrictive means of advancing it, notwithstanding the availability of parental-led content filtering software.

Part I of this Note describes the history of recent age-verification legislation and the modern reemergence of anti-pornography sentiments. It then analyzes the statutory requirements of age-verification laws, particularly of Texas H.B. 1181. The remainder of Part I recounts the history of obscenity jurisprudence in the United States and contemporary Congressional attempts to regulate sexual content on the internet. Part II considers a variety of defenses of the laws. It first examines whether the laws can be upheld under the obscenity exception to the First Amendment. It then contemplates the appropriate standard of review and analyzes whether H.B. 1181 survives the relevant tiers of constitutional scrutiny. Part III explores potential avenues for the Supreme Court to revisit its obscenity jurisprudence in light of original understandings of the First Amendment and consistent state practices following its ratification.

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By Jay S. Burgin

When mobile app developers like Epic Games—creator of the massively popular online video game Fortnite—make their product available on Apple’s App Store, they enter the “walled garden,” a closed digital ecosystem wherein iPhone and iPad users cannot download games through other digital marketplaces. They also agree to Apple’s “antisteering“ provision: developers cannot attempt to steer consumers away from the App Store to purchase the same game on the developer’s website, often for lower prices. In 2023, the Ninth Circuit held in Epic Games v. Apple that antitrust challenges to digital download tying arrangements like these should be judged under the defendant-friendly rule of reason standard, rather than by categorical presumptions. Though Apple ultimately evaded antitrust liability, the court struck down antisteering provision as “unfair” under California state competition law. This (minor) equitable relief did little to unseat the tech giant’s continued dominance over digital marketplaces. Yet the ruling in Epic Games accomplished what may prove to be significant: the circuit court held that trial courts applying rule of reason analysis must apply the underutilized—even neglected—balancing stage of the rule of reason.

This Note argues that the Ninth Circuit’s ruling in Epic Games reflects an emerging quagmire in antitrust law. As courts become more comfortable in applying the rule of reason standard in software industry tying claims, demonstrating clear anticompetitive practices may not be enough to prevail where, not only are there ever-ready procompetitive justifications for such practices, but the rule of reason as a process does not allow plaintiffs to pass go—regardless of the merits. The requirement that courts engage in fourth-stage balancing may relieve the doctrine of its implausible propensity to find non-liability and resolve inherent contradictions between findings of fact and outcomes as a matter of law. Post-Epic Games, if antitrust law is to remain salient in regulation of the platform software industry, courts must engage more seriously in balancing—or rather, re-balancing—a broader set of non-economic considerations and redirect courts toward the original conception of antitrust law as protector of the competitive process.

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By Celine Simone

Family content creation is a multibillion-dollar industry. Though most parents at some point share content of their children online, for many “influencer” parents and their children, putting in the hours to curate the perfect online image means legions of fans and an enviable income from advertising and sponsorship. The children of these families, though integral to this content’s success, have neither legal protection to assure compensation for their labor nor any control over the material in which they appear. Creating this content can have detrimental effects on children’s safety and well-being; additionally, because of the internet’s permanence, these negative effects often continue well into adulthood.

Several states have passed or proposed laws that would ensure some level of financial compensation for children involved in monetized content. A far less discussed—but perhaps equally important—potential form of protection is the “Right to Deletion,” whereupon turning 18 these children could command that their parents remove monetized media that includes their likeness. In the United States, parents enjoy a high degree of autonomy in making decisions for their children, meaning it is exceedingly difficult to explicitly control the type of content parents can create involving their minor children. Accordingly, this Note advocates for a national expansion of publicity rights, which would give children included in monetized content a “Right to Deletion” upon reaching adulthood—respecting parental autonomy while curbing the long-term negative effects of “sharenting” on the involved children. Further, deletion rights may have the effect of persuading parents to consider more carefully the potentially harmful effects of the content they produce without encroaching on their parental rights.

Part I of this Note outlines the family content creation industry, its unique characteristics compared to traditional forms of media, and the harms that can befall children in its production. Part II evaluates the United States’ legal understanding of parental autonomy and how this view leaves these children at an especially high risk of exploitation. Part III addresses the state of publicity laws and where children involved in monetized content fit into the existing legal framework. Finally, Part IV advocates for the expansion of publicity rights to give these children the “Right to Deletion” upon entering adulthood.

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By Aliza M. Tresser

The plain text of the Eighth Amendment prohibits the government from punishing people with excessive fines. But until the Excessive Fines Clause was incorporated in 2019, it did not apply to municipal or state governments. In applying federal doctrine to the local context, many courts have not yet extended this guarantee to an obvious application: expensive traffic and parking tickets compounded by the exorbitant costs associated with towed cars or losing the car altogether at a lien sale. While towing companies are third-party contractors, this Note argues that because police authorize the towing companies to tow private vehicles and fine their owners, these punishments fall within the bounds of the Excessive Fines Clause. Additionally, whether fines related to car towing are excessive may depend on the financial circumstances of the car owner. What may be a manageable unplanned expense for one person is not so for others and can throw families living in poverty into economic insecurity and instability. Given this exposure to instability, fines that are reasonable for one family are not for another. Though there is no explicit Eighth Amendment protection against arbitrary impoundments, there is legal momentum around the idea; a growing number of jurisdictions are finding Excessive Fines violations for vehicle impoundments. This Note presents a comprehensive analysis of the Eighth Amendment Excessive Fines Clause as applied to traffic and parking violations, especially when it results in a car being towed without the consent of the owner.

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By Dylan R. McDonough

In 2021, over 98% of criminal cases at the federal level terminated in guilty pleas, many of which were the result of plea agreements between the prosecution and the defense. The numbers were similar at the state level. Despite this prevalence of plea agreements, many U.S. jurisdictions limit the role that judges may play in providing oversight in the plea negotiation process. At the federal level—and in at least 14 states—judicial participation in the plea-bargaining process is entirely prohibited. In those jurisdictions, judges have one tool for oversight: judicial discretion to reject plea agreements. On the rare occasions in which judges use this tool, the reasons for rejecting plea agreements vary widely. Some cite issues with sentencing leniency, others point to the need for the participation of the public or alleged victims in the legal process, and still others raise concerns around legislative intent, police officers’ views, or appellate waivers. However, the exact contours of that discretion remain ill-defined. The reasons for rejection given by different judges sometimes conflict, and the rarity of memorialized rejections means little caselaw has developed on the subject. This, in turn, has created a lack of predictability for parties in the plea-bargaining process.

This Note reviews case law at the federal and state levels to determine what limits appellate courts have placed on that discretion and what factors trial courts have considered relevant to its exercise. It then argues for a unifying two-step framework for judicial rejection of plea agreements. First, trial courts would adopt a rebuttable presumption in favor of rejecting such agreements. Second, the trial court would determine whether the parties have rebutted that presumption, considering prosecutorial prerogatives, the defendant’s autonomy and rights, the public interest in participating in the criminal legal system, and the views of any alleged victims. By working within this framework, trial courts could enhance the consistency and predictability of judicial rejections of plea agreements for all stakeholders in the criminal legal system.

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By Rachel M. Wagner

Following a rash of headlines about infant abandonments in the 1990s, every state passed a Safe Haven Law (SHL) which permits the anonymous surrender of infants to a safe place, like a hospital. Over 4,000 infants have been surrendered in the last quarter century. SHLs received renewed attention after Dobbs v. Jackson Women’s Health (the 2022 case that overturned Roe v. Wade and eliminated the constitutional protection for
abortion), where they were cited in both oral argument and the majority opinion. Following Dobbs, nearly two dozen states enacted abortion bans or restrictions and subsequently saw an increase in their birthrates. At the same time, the idea of Baby Boxes—devices placed on the outside of hospitals and fire stations where an infant can be surrendered without a face-to-face encounter—gained traction. Many state legislatures have reacted to Dobbs and the Baby Box trend by re-evaluating their SHLs.

This Note evaluates current SHLs and makes recommendations for a Model Safe Haven Law to instruct states on how to best support mothers and infants in crisis as they update their statutes. Part I explains the data on infanticide and illegal infant abandonment and outlines the most significant shortcomings and strengths of SHLs thus far. Part II proceeds to analyze five key elements of SHLs: the maximum age of surrender, surrender locations, anonymity, parental rights, and criminal liability. Part III offers evidence-based recommendations in the form of a model law to help SHLs fulfill their promises of reducing illegal infant abandonment and supporting families in crisis.

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By Ray Lu

In September 2022, outdoor apparel company Patagonia captured national attention when it announced that a specially designed trust and nonprofit would own and oversee the private for-profit corporation. Patagonia’s novel structure, rooted in the concept of steward-ownership, uses a trust to create a mechanism for direct stakeholder governance. A longstanding proponent of business as a means for social good, Patagonia and its new configuration represent the latest structural development in the world of “social enterprises”—defined as companies that aim to achieve positive social or environmental impact along with financial sustainability or gain. Social enterprises were traditionally organized as conventional for-profit entities before the introduction of new hybrid structures such as low-profit liability companies and public benefit corporations. Even these newer options, however, have limitations to integrating the perspectives of non-shareholder stakeholders, leading to skepticism that these entities would pursue or meet their social impact goals.

This Note examines the steward-ownership model in the context of Patagonia and the social enterprise movement more broadly, identifying a trend in using business structures to legitimize social impact goals and foster credibility. The trust and nonprofit structure help separate economic incentives from decision-making authority and legally codifies an avenue for non-shareholder stakeholders to influence the operations of a social enterprise. Part I introduces social enterprises, including the different business structures available to impact-oriented companies. Part II discusses steward-ownership and the use of trusts in social enterprise business structures, comparing Patagonia’s new structure to existing options. Part III examines the implications of steward-ownership, highlighting concerns but finding that the model provides a strong form of stakeholder governance while maintaining the flexibility to incorporate other dimensions of social enterprise innovation. The analysis concludes that steward-ownership models are a definitive, sequential improvement in the use of business structures by social enterprises to reshape business into a force for positive social change.

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By Samuel B. Hainbach

In 1983, Robert Cover challenged the U.S. Supreme Court’s approach to conflicts between the law of the state and the religious commitments of “insular communities.” Over 40 years later, Cover’s call remains urgent, and is of special relevance in New York. In Brooklyn and the Lower Hudson Valley, Hasidic yeshivas with tens of thousands of students seek dispensation from state policy that requires all students to receive a basic secular education. Meanwhile, federal religious liberty jurisprudence, significantly changed since 1983, still fails to satisfyingly arbitrate between the commitments of religious communities and the law of the secular state.

Part I of this Note sets the theoretical and doctrinal stage. It explains the intervention made by Professor Cover in Nomos and Narrative, outlines the free exercise maximalism of today’s Supreme Court, and proposes how Cover’s ideas could be used to redeem a religious liberty jurisprudence gone awry. Specifically, as part of determining when the law of the insular religious community must bend before the law of the state, Part I argues that courts should inquire into whether the state’s law is paideic (world-creating) or merely regulatory. Part II applies these ideas to the pressing case study of Hasidic education in New York. It provides the reader with an overview of Hasidic education and the current legal landscape. It also cautions that current doctrine is ill-equipped to handle the dilemma. Finally, Part III encourages New York government to articulate its compulsory education law as a world-creating commitment of the state and urges the courts to recognize the legitimacy and necessity of such a claim.

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