Volume 59, Issue 1

4 posts

Who Invited Them to the Party?: Using FTC UDAP Rulemaking Authority to Contain ‘Infinite Privity’ in Digital Consumer Contracts

Volume 59, Issue 1

By Katerina Kakkis

In 2023, a husband lost his wife to an avoidable allergic reaction at a Disney restaurant in Florida.  When he sought accountability for his wife’s death, Disney asked the court to toss the case because of a binding arbitration clause—a clause in a contract the husband entered into when he signed up for a free trial of Disney+ in 2019.

To participate in modern digital markets, consumers must enter these unbargained-for wrap contracts with businesses.  Lurking in many such contracts is unassuming and obscure legalese that extends the enforceability of consequential contract clauses to a business’ limitless affiliates, subsidiaries, related parties, parents, and related services.  By agreeing to these terms, consumers give up legal leverage not only to the company on their screens, but also to that company’s invisible corporate web.  This Note calls this contractual sleight-of-hand the ‘infinite privity’ problem.

The ‘infinite privity’ problem deserves attention from the key stakeholder in the United States’ consumer protection regime—the Federal Trade Commission.  Under its well-established unfair practice rulemaking authority, the FTC should prohibit the enforcement of infinite privity when it unjustly strips consumers of their legal rights.  The new rule would not seek to disrupt the freedom of contract between a business and its consumers, but rather reinforce the bounds of that relationship to the parties actually exchanging value with each other.

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Campaigning with Congressional Staff: How the House and Senate Ethics Rules Enable Indirect Government Subsidization of Incumbents’ Reelection Bids

Volume 59, Issue 1
By Alec J. Goldstone

The ethics rules of the U.S. House of Representative and U.S. Senate seek to minimize the use of government resources to support incumbents’ reelection campaigns.  Government-paid congressional staff are prohibited from engaging in campaign activity during their working hours.  However, congressional staff may engage in paid or uncompelled volunteer campaign activities outside of their working hours—on their “own time.”  As applied, this rule allows incumbent members of Congress to pay their official staff additional salaries or stipends from their campaign accounts and task them with campaign responsibilities.  This structure leaves open serious questions of fairness.  Even when staff follow the rules and confine all campaign activity to their “own time,” this practice can reduce campaign staffing costs for incumbents, as government-paid staff can leverage the knowledge, experience, and relationships they accumulate on government time to more efficiently and expeditiously complete campaign tasks.  Consequently, this practice can offer incumbents a financial advantage over non-incumbent challengers, which undermines the democratic principles at the core of our political system.  This Note assesses the fairness of this practice, examines whether it indirectly enables government resources to bolster incumbents’ reelection campaigns, and proposes legislation prohibiting campaigns from disbursing funds to official congressional staff.

Part I provides an overview of the current House and Senate ethics rules as they relate to campaign activity and an assessment of the mechanisms available to enforce them.  Part II explains how congressional staffers’ campaign activity during their “own time” undermines democratic principles by enabling government resources to flow indirectly to incumbents’ reelection campaigns.  It then discusses the absence of mechanisms to challenge these rules and the practices they allow.  Part III encourages Congress to amend the Federal Election Campaign Act to prohibit congressional campaigns from disbursing campaign funds to official congressional staff.  This solution would limit official staff participation in campaigns to uncompelled volunteer activity, and it would provide the Federal Election Commission with enforcement authority.  As a result, any volunteer campaign activity conducted by official staff would be subject to a higher level of scrutiny as to whether it is truly uncompelled.

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“My Museum’s Reluctant Undertakers”: Repatriation After the 2023 NAGPRA Rule

Volume 59, Issue 1

By Emily R. Holtzman

The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) recognized the rights of Indian Tribes and Native Hawaiian organizations to their own ancestral human remains, associated and unassociated funerary objects, sacred objects, and objects of cultural patrimony.  The promise of NAGPRA was to repatriate hundreds of thousands of ancestral human remains and millions of cultural items held in museum and federal agency collections.  For more than three decades, NAGPRA facilitated significant victories for the project of repatriation, but structural shortcomings in NAGPRA’s repatriation regime led Indian Tribes, legal scholars, and the Senate Committee on Indian Affairs to call for regulatory change.  Promulgated on December 13, 2023, the newly revised final rule (hereinafter “2023 Rule”), includes updates to nearly every facet of NAGPRA.  While repatriation professionals are generally supportive of the revision, its implementation has resulted in confusion and chaos.

This Note evaluates the 2023 Rule and its interpretation in the museum world in the first year after its promulgation, then proposes the Department of the Interior and the National NAGPRA Program take specific steps to respond to new and old problems with NAGPRA.  Part I gives an overview of American museum practices that led to the passage of NAGPRA.  Part II describes NAGPRA’s strengths and the weaknesses that led to a call for reform. Using firsthand accounts from legal and repatriation professionals, Part III begins with a survey of the 2023 Rule, reviews its most impactful reforms, and details barriers to compliance and questions that the 2023 Rule fails to address.  Part IV proposes solutions to these issues, recommending the Department of the Interior strengthen its enforcement of NAGPRA and exploring how augmented enforcement could impact museums, federal agencies, and aggrieved parties.  Part IV also suggests the National NAGPRA Program make certain changes to its online guidance and briefly addresses how public attention affects NAGPRA repatriation efforts.  Although the 2023 Rule includes long-awaited reforms that will help revitalize NAGPRA, the 2023 Rule cannot reach its full potential until more attention and resources are directed toward fulfilling NAGPRA’s original promise.

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Deference, Adrift

Volume 59, Issue 1

By Jeffrey Fastow

For more than a century, the federal courts have improvised their way through the overseas territories—sometimes treating them as states, sometimes as colonies, and often as something in between.  This Note argues that this uncertainty is not merely historical but structural.  Territorial courts, grounded under Article IV rather than Article III, require a distinct mode of judicial review: one bounded by political-question restraint and informed by administrative deference, rather than by analogy to state sovereignty.  In particular, when territorial courts interpret their own organic acts or territorial statutes, such disputes should be understood as political questions textually committed to Congress under the Territory Clause and lacking judicially manageable standards.  And even when courts believe review is appropriate, judges should afford territorial interpretations Skidmore-style respect—measured by expertise, consistency, and reasoned judgment—much as they once did to agency interpretations of delegated authority.  The result is an account of Article IV-modulated review that preserves Marbury’s core commitments, while insulating the territories from the ad hoc interventions that have long characterized America’s law of expansionism.

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