Deepfake Privacy: Attitudes and Regulation

By: Matthew B. Kugler & Carly Pace

Article III and the Political Question Doctrine

By: Scott Dodson

New Federalism and Civil Rights Enforcement

By: Alexander Reinert, Joanna C. Schwartz & James E. Pfander

Business Information and Nondisclosure Agreements: A Public Policy Framework

By: Rex N. Alley

Class Arbitration Waivers Cannot Be Found Unconscionable: A Pervasive and Common "Mis-Concepcion"

By: Emma Silberstein

Deploying the Internal Separation of Powers Against Racial Tyranny

By: Bijal Shah

Regulating During Emergencies

By: Michael Barsa & David Dana

The So-Called Series-Qualifier Canon

By: Adam G. Crews

The Judiciary Steps Up to the Workplace Challenge

By: Hon. M. Margaret McKeown

New Federalism and Civil Rights Enforcement

By: Alexander Reinert, Joanna C. Schwartz, James E. Pfander | November 14, 2021

Calls for change to the infrastructure of civil rights enforcement have grown more insistent in the past several years, attracting support from a wide range of advocates, scholars, and federal, state, and local officials. Much of the attention has focused on federal-level reforms, including proposals to overrule Supreme Court doctrines that stop many civil rights lawsuits in their tracks. But state and local officials share responsibility for the enforcement of civil rights and have underappreciated powers to adopt reforms of their own. This Article evaluates a range of state and local interventions, including the adoption of state law causes of action for constitutional violations, improved local budgeting and indemnification practices, and new litigation strategies that encourage government attorneys charged with defending civil rights litigation to take better account of the significant public interest in enforcing constitutional norms. Rather than await federal reforms that may never come, the many state and local officials who have advocated for change can promptly translate their professed commitments into law and policy.

Class Arbitration Waivers Cannot Be Found Unconscionable: A Pervasive and Common “Mis-Concepcion”

By: Emma Silberstein | November 14, 2021

In 1925, Congress enacted the Federal Arbitration Act (FAA) as a means of quelling judicial hostility towards arbitration agreements, providing a mechanism for the enforcement of such agreements. The Supreme Court’s treatment and application of the FAA has evolved over time, and in recent decades the FAA has been massively extended to cover not only arm’s-length commercial transactions, but consumer and employment contracts as well. The Supreme Court, its previous hostile stance long forgotten, has created a policy of favoring arbitration and striking down many an argument that may interfere with that policy. In particular, the Court solidified its position in AT&T Mobility LLC v. Concepcion that class arbitration waivers may not be found substantively unconscionable. As a result, large corporations have extraordinary latitude to insulate themselves from liability to their customers and employees, who often cannot hope to take on the time commitments and economic burdens of individual arbitration.

This Note reexamines the Concepcion holding in light of the FAA’s purpose and text, contemporary ramifications, and social justice considerations. Ultimately, this Note makes a case for constraining the Court’s treatment of class arbitration waivers in order to allow for a finding of substantive unconscionability when circumstances demand it.

Business Information and Nondisclosure Agreements: A Public Policy Framework

By: Rex N. Alley | November 14, 2021

Trade secret law, as codified in the Uniform Trade Secrets Act, gives businesses in nearly every U.S. jurisdiction a uniform, clearly defined right to protect secret and valuable business information from misappropriation. But how can businesses protect information that, while potentially useful, falls short of the legal definition of a trade secret? Businesses often require their employees to sign nondisclosure agreements (NDAs) to protect this category of information, which this Note refers to as “confidential business information” or “CBI.” These CBI NDAs are often drafted so broadly that, read literally, they would encompass every piece of information an employee learns at her job. There is cause for concern that these CBI NDAs could have anticompetitive effects and that enforcing them may conflict with the fundamental purposes of trade secret law. This Note systematically surveys existing law surrounding CBI NDA enforcement and develops a judicial framework for determining when such CBI NDAs should be enforceable.

Nw. U. L. Rᴇᴠ.