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Volume 116 - Issue 3


New Federalism and Civil Rights Enforcement

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.

Notes and Comments

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

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

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.


Deepfake Privacy: Attitudes and Regulation

Matthew B. Kugler, Carly Pace | November 14, 2021

Using only a series of images of a person’s face and publicly available software, it is now possible to insert the person’s likeness into a video and show them saying or doing almost anything. This “deepfake” technology has permitted an explosion of political satire and, especially, fake pornography. Several states have already passed laws regulating deepfakes, and more are poised to do so. This Article presents three novel empirical studies that assess public attitudes toward this new technology. In our main study, a representative sample of the U.S. adult population perceived nonconsensually created pornographic deepfake videos as extremely harmful and overwhelmingly wanted to impose criminal sanctions on those creating them. Labeling pornographic deepfakes as fictional did not mitigate the videos’ perceived wrongfulness. In contrast, participants considered nonpornographic deepfakes substantially less wrongful when they were labeled as fictional or did not depict inherently defamatory conduct (such as illegal drug use). A follow-up study showed that people sought to impose both civil and criminal liability on deepfake creation. A second follow-up showed that people judge the creation and dissemination of deepfake pornography to be as harmful as the dissemination of traditional nonconsensual pornography—otherwise known as revenge pornography—and to be slightly more morally blameworthy.

Based on the types of harms perceived in these studies, we argue that prohibitions on deepfake pornographic videos should receive the same treatment under the First Amendment as prohibitions on traditional nonconsensual pornography rather than being dealt with under the less-protective law of defamation. In contrast, nonpornographic deepfakes can likely only be dealt with via defamation law. Still, there may be reason to allow for enhanced penalties or other regulations based on the greater harm people perceive from a defamatory deepfake than a defamatory written story.

Article III and the Political Question Doctrine

Scott Dodson | November 14, 2021

Courts and commentators have often sourced the political question doctrine in Article III, a repository of other separation-of-powers doctrines applicable to the federal courts. Rucho v. Common Cause, a blockbuster political question case decided in 2019, explicitly tied the doctrine to Article III. But the historical development of the doctrine undermines the depth of that connection. Further, sourcing the doctrine in Article III leads to some very odd effects, including leaving state courts free to answer federal political questions. This Article argues that the source of the political question doctrine is in substantive law, not in Article III. Such an orientation helps explain a number of puzzling attributes of the doctrine, including why federal courts retain jurisdiction over political question cases, why state courts must follow the federal political question doctrine, and why some political questions can be delegated back to the courts. Refocusing the political question doctrine on substantive law, rather than on Article III, helps better allocate power among federal courts, state courts, and political branches.