Volume 54, Issue 1

4 posts

Bend and Snap: Adding Flexibility to the Carpenter Inquiry

Issues Volume 54, Issue 1

By Sherwin Nam

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.

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Commercial Free Speech Constraints on Data Privacy Statutes After Sorrell v. IMS Health

Issues Volume 54, Issue 1

By Bastian Shah

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 been ambiguous.

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.

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A Critique of Consumer Advocacy Against the Restatement of the Law of Consumer Contracts

Issues Volume 54, Issue 1

By David Berman

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 further consideration.

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 consumer harm.

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.

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Out of Sight, Out of Mind: Rural Special Education and the Limitations of the IDEA

Issues Volume 54, Issue 1

By Lydia Turnage

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.

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