Volume 58, Issue 2

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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