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Balancing Judicial Deference Under the State Secrets Privilege: A Comparative Statutory Approach

O'Sullivan, Ryan | June 1, 2024

This Essay analyzes judicial procedures used to determine the validity of government secrecy claims under the Freedom of Information Act (FOIA), the state secrets privilege, and the Classified Information Procedures Act (CIPA). It argues that courts apply an equally deferential approach under FOIA and the state secrets privilege, often accepting government decisions to withhold relevant information. In contrast, courts employ a more searching review in criminal cases involving CIPA, thereby meaningfully deterring excessive secrecy. Under FOIA and CIPA, Congress balanced the level of judicial scrutiny given the legitimate need for government secrecy compared with the individual interests at stake—for FOIA, an individual’s generalized right to information access, and for CIPA, an individual’s right to a fair trial. The strength of the individual interests asserted by plaintiffs in state secrets cases varies between the relatively weak FOIA interest and relatively strong CIPA interest. In some cases, the individual interest is akin to the generalized, undifferentiated right of access in FOIA, such as suits broadly challenging unlawful government practices on behalf of the public. However, in some cases, the interests at issue are nearly as weighty as the right to evidence and a fair trial protected by CIPA, such as individuals challenging their torture by executive officials. The strength of the individual interests asserted by plaintiffs in state secrets cases varies between the relatively weak FOIA interest and relatively strong CIPA interest. Where the interest is generalized, courts should be as deferential as they are in FOIA cases. But where the interest implicates fundamental liberties, courts should conduct a searching review like that mandated in CIPA. This ensures that the Executive Branch is meaningfully deterred from abusing its ability to withhold information and shifts the cost of secrecy back onto the government.

Author

J.D. Candidate, Northwestern Pritzker School of Law, 2024; B.S., Georgetown University, 2019. I am grateful to Professor Heidi Kitrosser for her guidance and her fascinating course on Government Secrecy that provided me with the opportunity to write this Essay. I am indebted to the Northwestern University Law Review Online team for their careful editing and helpful suggestions.

Copyright 2024 by Ryan O’Sullivan

Cite as: Ryan O’Sullivan, Balancing Judicial Deference Under the State Secrets Privilege: A Comparative Statutory Approach, 119 Nw. U. L. Rev. Online 105 (2024). https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1343&context=nulr_online.

Data Privacy in Carceral Settings: The Digital Panopticon Returns to Its Roots

Raher, Stephen | May 15, 2024

Jeremy Bentham’s panopticon has enjoyed a resurgence as a topic of discourse in the modern age due to the omnipresent surveillance most people now face in the era of Big Data. Analogizing modern digital surveillance to the famous eighteenth-century prison designed to facilitate pervasive monitoring and observation has helped define several organizing principles of the present movement for data privacy; however, relatively little attention is paid to the collection and usage of personal data in actual prisons and jails. Building on the author’s public interest advocacy work and previous publications, this Article addresses this gap in the literature by surveying the rapid growth of consumer technology in correctional facilities and analyzing related issues of surveillance and privacy.

Until quite recently, incarcerated people in the United States were reliant on postal mail and voice telephone service for communication with the outside world. But digital technologies have taken the correctional industry by storm, with video calling, electronic messaging, digital money transfers, and handheld tablets all becoming the norm in the last ten years. Now that such technologies have been deployed on a widespread basis, the companies providing these services are embarking on a new line of business: monetizing the involuntary collection, sharing, and analysis of data collected from captive consumers. If the emergence of closed platforms on the Internet is frequently analogized to a walled garden, then the comparable experience of correctional technology users can be described as a digital prison yard—one that ensnares not just incarcerated people, but their friends, families, and correspondents as well.

After reviewing the historical evolution of carceral communications channels, this Article provides insight into the data practices of contemporary correctional technology companies as revealed by contracts, bid proposals, litigation, and news accounts. In light of the grave concern about consumer privacy revealed by current corporate practices, the Article concludes by examining existing law (which provides a patchwork of protections for users of consumer-facing carceral technologies) and outlines a proposal to define consumer privacy rights in this growing and largely unregulated industry.

Author

Partner, Tabor Law Group (Portland, OR) and principal, Amalgamated Policy Research (Portland, OR), stephen@amalgamatedpolicy.com. The author is grateful for editorial feedback from Andrew Blubaugh and for insightful comments on an earlier draft provided by the participants at the Berkeley Law Center for Consumer Law & Economic Justice’s Fifth Annual Consumer Law Scholars Conference, particularly Raúl Carrillo, Craig Cowie, Brenda Cude, Michele Dickerson, Lesley Fair, Vijay Raghavan, and Lauren Willis. Section I of this Article is based on a presentation delivered at the 2021 Law & Society Association Annual Meeting; thanks to Tommaso Bardelli for the invitation to participate in that event.

Copyright  2024  by  Stephen Raher

Cite as: Stephen Raher, Data Privacy in Carceral Settings: The Digital Panopticon Returns to Its Roots, 119 Nw. U. L. Rev. Online 73 (2024). https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1342&context=nulr_online.

What’s in a Name? Common Carriage, Social Media, and the First Amendment

Yoo, Christopher S. | March 10, 2024

Courts and legislatures have suggested that classifying social media as common carriers would make restrictions on their right to exclude users more constitutionally permissible under the First Amendment. A review of the relevant statutory definitions reveals that the statutes provide no support for classifying social media as common carriers. Moreover, the fact that a legislature may apply a label to a particular actor plays no significant role in the constitutional analysis. A further review of the elements of the common law definition of common carrier demonstrates that four of the purported criteria (whether the industry is affected with a public interest, whether the social media companies possess monopoly power, whether they are involved in the transportation and communication industries, and whether social media companies received compensating benefits) do not apply to social media and do not affect the application of the First Amendment. The only legitimate common law basis (whether an actor holds itself out as serving all members of the public without engaging in individualized bargaining) would again seem inapplicable to social media and have little bearing on the First Amendment. The weakness of these arguments suggests that advocates for limiting social media’s freedom to decide which voices to carry are attempting to gain some vague benefit from associating their efforts with common carriage’s supposed historical pedigree to avoid having to undertake the case-specific analysis demanded by the First Amendment’s established principles.

Author

John H. Chestnut Professor of Law, Communication, and Computer & Information Science and Founding Director of the Center for Technology, Innovation and Competition, University of Pennsylvania.

Copyright  2024  by  Christopher S. Yoo

Cite as: Christoper S. Yoo, What’s in a Name? Common Carriage, Social Media, and the First Amendment, 119 Nw. U. L. Rev. Online 49 (2024). https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1341&context=nulr_online

Emerging Technology’s Unfamiliarity with Commercial Law

Reyes, Carla L. | February 14, 2024

Over the course of a four-year, collaborative process that was open to the public, the Uniform Law Commission (ULC) and the American Law Institute (ALI) undertook a project to revise the Uniform Commercial Code (UCC) to account for the impact of emerging technologies on commercial transactions. The amendments, approved jointly by the ULC and ALI in July 2022, touch on aspects of the entire UCC, but one change has inspired ire and attracted national media attention: a revision to the definition of “money.” The 2022 UCC Amendments alter the definition of “money” to account for the introduction of central bank digital currencies (CBDCs), such as the Bahamian Sand Dollar, and create a separate asset classification category, a controllable electronic record, for cryptocurrencies such as bitcoin. Opponents of this change point to concerns that the UCC seeks to “ban” cryptocurrency or otherwise advantage central bank digital currencies and disadvantage cryptocurrencies. This Essay examines this dispute over the 2022 UCC Amendments and argues that it stems from a misunderstanding of core commercial law concepts. Ultimately, it seems that diminishing familiarity with commercial law—a side effect of expanding reliance on emerging financial technology products—stands as a key obstacle to the enactment of legal changes designed to give the objectors the very legal effects they desire.

Author

Robert G. Storey Distinguished Faculty Fellow and Associate Professor of Law, Southern Methodist University Dedman School of Law; Faculty Fellow, Hunt Institute for Engineering and Humanity, Southern Methodist University Lyle School of Engineering; Affiliated Faculty, Indiana University Bloomington Ostrom Workshop Program on Cybersecurity and Internet Governance; Research Associate, University College London Center for Blockchain Technology.

Copyright  2024  by  Carla L. Reyes

Cite as: Carla L. Reyes, Emerging Technology’s Unfamiliarity with Commercial Law, 119 Nw. U. L. Rev. Online 31 (2024), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1340&context=nulr_online

Abortion and the Extremism of Bright Line Rules

Brown, Teneille R. | February 6, 2024

Rather than eliding the workability or necessity of bright-line rules in certain domains, this Essay is a rallying cry for epistemic humility regarding what biological criteria can and cannot say. Policymakers sometimes lean on the biosciences to offer “objective” solutions to thorny moral and legal issues. But descriptive biological data cannot answer normative questions on their own. Cloaking the theoretical, normative scaffolding in biological criteria is a disingenuous but common phenomenon I refer to as the “bio-legal mismatch.”

In this Essay, I discuss various abortion-restrictive statutes and cases to elucidate the problems with the bio-legal mismatch. Specifically, I explore the rigid use of gestational age, definitions of medical emergency, fetal anomalies, fetal pain, and the perversion of informed consent. In each case, related policies advance biologically naive, black-and-white thinking to reinforce gender norms and dehumanize pregnant people and the complex reasons they terminate. After explaining how black-and-white thinking relies on cognitive distortions and triggers tribalism, I conclude with a nonexhaustive list of factors that legislators and judges should examine when developing policy based on biological criteria—such as in the highly contested context of abortion. The factors are geared at assessing whether the biological criteria are reliable and connected to legally and normatively relevant events, or whether they are being exploited to mask ideological extremism.

Author

Teneille R. Brown is the James I. Farr Professor of Law and Director of the Center for Law and the Biomedical Sciences (LABS) at the S.J. Quinney College of Law, and a faculty member in the Center for Health Ethics, Arts, and Humanities at the University of Utah.

Copyright 2024 by Teneille R. Brown

Cite as: Teneille R. Brown, Abortion and the Extremism of Bright Line Rules, 119 Nw. U. L. Rev. Online 1 (2024), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1338&context=nulr_online.

Tax Forfeitures and the Excessive Fines Muddle

Asbridge, Jessica L. | October 18, 2023

The federal government and state governments increasingly rely upon fines and forfeitures to enforce civil laws ranging from simple land-use laws to complex securities laws. The U.S. Supreme Court, however, has failed to clearly articulate when these sanctions are considered punitive, such that they qualify for scrutiny under the Excessive Fines Clause of the Eighth Amendment. The Court recently decided Tyler v. Hennepin County, which involved the forfeiture of a home for unpaid property taxes worth a fraction of the home’s value. The Tyler Court declined to address the excessive fines claim, despite the forfeiture having multiple punitive characteristics, and instead resolved the case only as it related to the Takings Clause of the Fifth Amendment. Ultimately, the Court’s decision may best be understood as a recognition that property tax delinquency absent fraud or willful misconduct is such that any punitive fine or forfeiture is constitutionally barred.

Author

Associate Professor of Law, Baylor Law School. I am grateful for helpful conversations about this Essay with Christina M. Martin, who represented Geraldine Tyler in her case before the U.S. Supreme Court. The arguments and viewpoints presented herein, however, are my own. Thank you to Nicholas Almendares and Julia Mahoney, as well as Christopher Brett Jaeger and Rachel Kincaid for thoughtful comments and suggestions. I also thank Haylie English, for her excellent research assistance, as well as the staff of the Northwestern University Law Review Online for their outstanding editorial work.

Copyright 2023 by Jessica L. Asbridge

Cite as: Jessica L. Asbridge, Tax Forfeitures and the Excessive Fines Muddle, 118 Nw. U. L. Rev. Online 170 (2023), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1337&context=nulr_online.

Litigating Climate Change Infrastructure Impacts

Osofsky, Hari M. | August 31, 2023

This Essay is the first to examine ways in which the different pathways of climate change litigation—statutory interpretation, human and constitutional rights, and common law—interact with infrastructure impacts. Its analysis draws on a model of these pathways that Professor Jacqueline Peel and I developed in our book Climate Change Litigation:Regulatory Pathways to Cleaner Energy. The Essay finds that litigation across all three pathways plays a critical role in shaping how effectively we address infrastructure issues. Petitioners can use these cases to shine a spotlight on infrastructure harms, to push for or against the mitigation and adaptation measures needed to limit harm, and to seek compensation for loss and damage.

This Essay is published as part of the Northwestern University Law Review’s online essay series. The 2022 topic is “Climate Change & Infrastructure: Existential Threats to Our Built Environment.”

Author

Dean, Myra and James Bradwell Professor of Law, and Professor of Environmental Policy and Culture (courtesy), Northwestern University Pritzker School of Law. I would like to thank Professors Michael Barsa, Cary Coglianese, David Dana, Erin Delaney, Michael Gerrard, Jacqueline Peel, J.B. Ruhl, and Robert Weinstock for their thoughtful feedback and insights; Pritzker Library Fellow Freyja DePew for her helpful research assistance; and the Northwestern University Law Review Online Editor-in-Chiefs Taylor Nchako and Sasha Bryski and Editors Ella Chochrek, Adam Lefkowitz, Ezra Meren, Ryan O’Sullivan, and Xukun Rendu for their excellent editing.

Copyright 2023 by Hari M. Osofsky

Cite as: Hari M. Osofsky, Litigating Climate Change Infrastructure Impacts, 118 Nw. U. L. Rev. Online 149 (2023), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1336&context=nulr_online.

Climate Change and the Law of National Security Adaptation

Nevitt, Mark | August 31, 2023

The Department of Defense (DoD) is the largest employer in the world, owns and operates an enormous global real estate portfolio, and emits more Greenhouse Gases (GHGs) than many nations. Entrusted with the national security, the DoD is now threatened by a new enemy—climate change. Climate change imperils national security infrastructure while undermining the military’s capacity to respond to climate-driven disasters at home and abroad. However, legal scholarship has yet to address what I call “the law of national security adaptation” and related questions. For example, how do environmental and climate change laws apply to the U.S. military? What laws can be employed to safeguard military installations from rising seas, extreme weather, and other climate risks?

This Essay addresses these questions, inspired by my experience as an environmental attorney in Norfolk, Virginia—home to the largest navy base in the world. I first describe how climate change has become a new “environmental enemy” that threatens national security property around the globe. Second, I describe and analyze how the law of national security adaptation has developed to apply to environmental law and property law to encompass climate adaptation efforts on military installations. In doing so, the law of national security adaptation brings together constitutional law, an amalgamation of executive branch directives and regulations, and climate legislation designed to safeguard military infrastructure. Last, I argue that insights for climate adaptation more generally can be gleaned from the military’s experience addressing climate change. Somewhat surprisingly, congressional action on national security adaptation has been a beacon of bipartisanship. It has kept the climate adaptation “flame” alive when climate action was being extinguished elsewhere. The law of national security adaptation thus offers broader, normative insights for adaptation efforts outside the military fence line.

This Essay is published as part of the Northwestern University Law Review’s online essay series. The 2022 topic is “Climate Change & Infrastructure: Existential Threats to Our Built Environment.”

Author

Associate Professor of Law, Emory University School of Law. Prior to academia, he served for twenty years in the U.S. Navy in the rank of commander as both a tactical jet aviator and environmental lawyer (JAG). He previously served as the Sharswood Fellow at the University of Pennsylvania Law School, Associate Professor at Syracuse University College of Law, and Class of 1971 Distinguished Professor of Leadership & Law at the U.S. Naval Academy in Annapolis, Maryland. He thanks Jack Kirkpatrick, Sara Zdeb, and the generous funding of Emory University School of Law for research assistance and support.

Copyright 2023 by Mark Nevitt

Cite as: Mark Nevitt, Climate Change and the Law of National Security Adaptation, 118 Nw. U. L. Rev. Online 126 (2023), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1335&context=nulr_online.

Climate Entrenchment in Unstable Legal Regimes

Lockman, Martin | August 31, 2023

American climate law is the subject of serious and ongoing debate, and policy change is part of the ordinary process of democratic governance. However, in recent years some policymakers have deliberately undermined climate action by injecting legal instability into American climate law. This Essay addresses a simple question: how can Americans build necessary climate infrastructure in the face of an unstable political and legal regime?

Some readers may be shocked by this question. Indeed, this framing is intentionally provocative. However, this Essay recognizes a simple fact: not all American polities, and not all American policymakers, are trustworthy and predictable partners for climate infrastructure projects. Further, American climate law contains significant sources of instability which can be exacerbated by political sabotage. Actions that undermine public climate commitments create a genuine risk for both the legitimacy of American governance and the material well-being of Americans in the face of the global climate crisis.

This Essay proposes a tool kit for protecting climate infrastructure from political interference. Part I identifies sources of legal instability in America’s response to the climate crisis, places it in a theoretical context, and discusses the costs of this political instability. Part II discusses the ethical issues involved in preempting political instability in a democracy and concludes that addressing climate change aligns with historical ethical justifications for entrenchment in American law. Finally, Part III outlines doctrinal, contractual, and political techniques to entrench climate policy and protect climate infrastructure from political interference.

This Essay is published as part of the Northwestern University Law Review’s online essay series. The 2022 topic is “Climate Change & Infrastructure: Existential Threats to Our Built Environment.”

Author

Climate Law Fellow and Associate Research Scholar at Sabin Center for Climate Change Law at Columbia Law School. The views expressed herein are solely my own and do not reflect the views of my employers, past, present, or future. I am grateful to Professor Michael B. Gerrard for his invaluable feedback on an early draft of this paper, and to the staff of the Northwestern University Law Review for their hard work and thoughtful comments.

Copyright 2023 by Martin Lockman

Cite as: Martin Lockman, Climate Entrenchment in Unstable Legal Regimes, 118 Nw. U. L. Rev. Online 98 (2023), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1334&context=nulr_online.

Cooling Infrastructure, Cooling Security, and a Warming World

Dana, David A. | August 31, 2023

This Essay shows that the climate adaptation challenge for cooling infrastructure—and especially air conditioning—can be thought of as entailing a longer-term challenge and an immediate-term challenge. The longer-term challenge is to spur innovation in air conditioning technology such that new, more environmentally friendly, yet also affordable options become available and adopted. The immediate challenge for cooling infrastructure is to ensure that people right now do not lose their lives and well-being because they lack adequate air conditioning. There are several possible means of meeting the long-term challenge of innovating better, greener, and yet affordable air conditioning, including stricter regulatory requirements, targeted research grants, and innovation prizes. Possible means of meeting the immediate challenge include the use of the federal spending power to incentivize states and localities to use current federal funding streams to better meet household cooling needs, and to take stronger measures, including reformed zoning, to address urban heat island effects. This Essay also underscores the possible national security implications of both the immediate and long-term challenges.

This Essay is published as part of the Northwestern University Law Review’s online essay series. The 2022 topic is “Climate Change & Infrastructure: Existential Threats to Our Built Environment.”

Author

Kirkland & Ellis Professor of Law, Northwestern University Pritzker School of Law and Director of the Program on Sustainability and Food and Animal Law. Many thanks to Heidi Kitrosser, Michael Kremer, Nadav Shoked, Maggie Franz, and Cherie Zhang.

Copyright 2023 by David A. Dana

Cite as: David A. Dana, Cooling Infrastructure, Cooling Security, and a Warming World, 118 Nw. U. L. Rev. Online 66 (2023), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1333&context=nulr_online.

The SEC’s Compensation Clawback Loophole

Walker, David I. | August 25, 2023

The SEC has recently released final rules implementing the executive incentive compensation recovery or “clawback” provisions of the 2010 Dodd-Frank Act. These rules are aimed at recovering from executives incentive compensation determined to be excessive in light of a subsequent accounting restatement. Unfortunately, the SEC’s rules create a loophole by excluding purely time-vested stock and stock option grants from the reach of the new clawback regime. This aspect of the rulemaking seems inconsistent with the intent of Congress, and the result likely will be to distort executive pay practices in a perverse fashion, shifting compensation back in the direction of the time-vested stock option heyday of the late 1990s and early 2000s. As such, the SEC’s decision is also regrettable as a policy matter. In addition to exempting a large fraction of incentive compensation from the reach of the clawback, a renewed emphasis on time-vested options would reverse a salutary trend in executive compensation design in favor of more tightly performance-conditioned pay instruments that create incentives over a broader range of market conditions than time-vested options, often reward executives only when they outperform their peers, and minimize executives’ ability to use inside information to maximize their compensation. To be sure, institutional investors and proxy advisory firms that embrace serious linkage between pay and performance may resist firms backsliding into heavy usage of time-vested stock and options, but, given the risks to executives and the cost to firms of issuing compensation instruments subject to the new clawback, I am not optimistic

Author

Professor of Law and Maurice Poch Faculty Research Scholar, Boston University School of Law. The author thanks Scott Hirst and David Webber for their valuable comments and suggestions and Stephen Fleury for excellent research assistance.

Copyright 2023 by David I. Walker

Cite as: David I. Waker, The SEC’s Compensation Clawback Loophole, 118 Nw. U. L. Rev. Online 45 (2023), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1332&context=nulr_online.

Ending the Qualified Immunity Nightmare

Stehle, Jared | July 16, 2023

Author

J.D. 2023, Northwestern Pritzker School of Law. Much credit belongs to Professor Xiao Wang and Ivan Parfenoff for their helpful comments. Thanks also to the great NULR Online team for helping to polish this piece.

Copyright 2023 by Jared Stehle.

Cite as: Jared Stehle, Ending the Qualified Immunity Nightmare, 118 Nw. U. L. Rev. Online 36 (2023), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1331&context=nulr_online.

Distributive, Disjunctive, and Discombobulated: Interpreting the Word “and” in 18 U.S.C. § 3553(f)(1)

Cordonnier, Bailey | June 17, 2023

Author

Northwestern Pritzker School of Law, Class of 2023. Thanks to Professor Xiao Wang and Sudeep S. Dhanoa for their insightful edits and advice on this piece, as well as the NULR team for their helpful edits. All errors are mine.

Copyright 2023 by Bailey Cordonnier

Cite as: Bailey Cordonnier, Distributive, Disjunctive, and Discombobulated: Interpreting the Word “and” in 18 U.S.C. § 3553(f)(1), 118 Nw. U. L. Rev. Online 26 (2023), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1330&context=nulr_online.

Two Birds With One Stone Through MDL Interlocutory Appeal: Lessons From Rule 23(f)

Stehle, Jared | March 28, 2023

Debates rage over whether multidistrict litigation, or MDL, should have a mechanism for interlocutory appeal. Though the territory on this topic is well trod, the two sides have not fully mapped out the implications of a parallel controversy in the class action space. One side rails about the due process dangers that MDL plaintiffs face as their claims await resolution in a faraway judicial district. The other complains that defendants get stuck with legal rulings made by these same district judges, with concomitant error costs that get multiplied across many thousands of plaintiffs. Neither seems to make the point that these same issues plagued class action litigation—that is, until the adoption of an appeal mechanism in 1998’s Rule 23(f). This piece argues that the lessons of Rule 23(f) should inform our modern MDL debate. In particular, one core lesson emerges—the interlocutory appeal mechanisms defendants want have strong potential to resolve the procedural irregularities that irk plaintiffs.

Author

Northwestern Pritzker School of Law, Class of 2023. Thanks to Counselor to the Chief Justice Robert M. Dow and Judge Amy J. St. Eve, who both directed me toward resources this paper badly needed, and to Taylor Nchako, Noah Bloomberg, Danny Damitio, Ella Chochrek, Sasha Bryski, and the rest of the NULR team for their helpful edits. All errors are mine.

Copyright 2023 by Jared Stehle

Cite as: Jared Stehle, Two Birds With One Stone Through MDL Interlocutory Appeal: Lessons From Rule 23(f), 118 Nw. U. L. Rev. Online 1 (2023), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1329&context=nulr_online.

Preserving Privilege: Developing a Sound Litigation Strategy for Prison Wiretapping Cases

Cummins, Daniel J. | February 14, 2023

The attorney–client privilege is the oldest and most storied privilege in the United States common law. The justifications for the preservation of the privilege compound when applied to incarcerated individuals who wish to speak with their counsel privately over the phone to organize their criminal defense, appeal a judgment, or work through negotiations with the government. However, in recent years, private telecommunications providers operating in jails and prisons have continually violated that privilege by recording prisoners’ calls with their attorneys. Plaintiffs have taken to the courts to litigate these wrongs but have enjoyed limited and disparate degrees of success. This Note explores one possible civil cause of action available to prisoners and their attorneys in these situations: the Federal Wiretap Act. Specifically, it analyzes and rebuts defendants’ most prevalent defenses. In doing so, it offers a litigation roadmap to plaintiffs who have been harmed by these predatory recording practices and wish to hold the telecommunications companies responsible for their actions.

Author

J.D. Candidate, Northwestern Pritzker School of Law, 2023; B.S., Indiana University, 2017. I owe a deep debt of gratitude to every member of the Northwestern University Law Review Online team for their thoughtful work on this Note and support over the past year. Thanks as well to Alan Mills, Executive Director of the Uptown People’s Law Center, for his course on Prisons and Prisoners’ Rights, which provided me with the opportunity to write on this topic. To Maurice Possley, for his careful copyediting. Finally, a very special thank you to my grandfather, Robert Cummins. Not only did he inspire this Note, but he has served as the best guidepost and confidant that I could ask for as I pursue a career in the law.

Copyright 2023 by Daniel J. Cummins

Cite as: Daniel J. Cummins, Preserving Privilege: Developing a Sound Litigation Strategy for Prison Wiretapping Cases, 117 Nw. U. L. Rev. Online 107 (2023), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1328&context=nulr_online.

Privacy’s Rights Trap

Waldman, Ari Ezra | November 16, 2022

A growing chorus of scholars, privacy professionals, and policymakers think that individual rights of control—rights to access, correct, and delete data, as well as rights to opt out of tracking and to have humans in the loop of automated decision-making—are effective means of regulating the data-extractive economy. Indeed, the argument for individual rights is so pervasive and hegemonic that individual rights form the backbone of every piece of privacy legislation introduced in the United States in the last several years.

This Essay offers a comprehensive critique of that argument. Individual rights fail to address the social harms of the information economy. They shift the burden of privacy regulation to individuals mostly incapable of exercising that responsibility while simultaneously giving technology companies the power to define the practical reach of the law. Individual rights cannot place limits on technology companies when the law has already immunized their business models from accountability. Individual rights also set the wrong norms: they normalize the notion that privacy should be an individual responsibility rather than a core obligation of corporate actors. And the history of using individual rights to solve structural problems proves how rights crowd out necessary reform. If individual rights of control are what pass for privacy legislation in the United States, the problems of informational capitalism will get worse, not better.

Author

Professor of Law and Computer Science, Northeastern University; Faculty Director, Center for Law, Information, and Creativity, Northeastern University School of Law; Affiliated Fellow, Information Society Project at Yale Law School. Ph.D., Columbia University; J.D., Harvard Law School. Special thanks to Danielle Citron, Julie Cohen, Woodrow Hartzog, Margot Kaminski, Neil Richards, and Salome Viljoen. I have the individual right to make the mistakes in this Essay. But I also have the obligation to take responsibility for them.

Copyright 2022 by Ari Ezra Waldman

Cite as: Ari Ezra Waldman, Privacy’s Rights Trap, 117 Nw. U. L. Rev. Online 88 (2022), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1326&context=nulr_online.

Two Comes Before Four and Five: The FAA in Campbell v. Keagle

Meshel, Tamar | October 10, 2022

Contrary to popular opinion, arbitration under the Federal Arbitration Act (FAA) is not intended to be forced or unfair, including in the employment context. Indeed, § 2 of the FAA permits courts to refuse enforcement of arbitration agreements on the basis of generally applicable state contract law defenses, such as unconscionability, in order to safeguard against potential abuse of the arbitral process. Yet decisions such as that of the United States Court of Appeals for the Seventh Circuit in Campbell v. Keagle threaten to nullify the FAA’s protections and reinforce the perception of arbitration as an unjust process. The district court in this case found that the parties’ employment arbitration clause was inordinately one-sided in the employer’s favor and that the offending provisions could not be severed under Illinois law to compel arbitration. Thus, the arbitration clause was unenforceable under § 2 of the FAA. The Seventh Circuit reversed, but not on the basis of state contract law. Rather, the court of appeals enforced the parties’ agreement to arbitrate on the basis of subsequent procedural provisions of the FAA, namely §§ 4 and 5. This Essay argues that the Seventh Circuit’s reliance on these provisions to circumvent the district court’s finding of unconscionability under § 2 of the FAA ignores the significance of the FAA’s internal sequencing. An arbitration agreement found unenforceable under § 2—the substantive section of the FAA— cannot escape its fate because of the Act’s subsequent procedural provisions. The Seventh Circuit’s decision also conflicts with Supreme Court jurisprudence and creates a circuit split regarding the interrelationship between §§ 2, 4, and 5 of the Act. This Essay concludes that while the Seventh Circuit enforced the parties’ arbitration agreement in Campbell v. Keagle, its reasoning does not benefit FAA arbitration. It sets a dangerous precedent for future cases involving unconscionable arbitration agreements and fuels the growing backlash against employment arbitration under the FAA.

Author

Associate Professor, University of Alberta Faculty of Law. The author thanks Professor Jeremy Telman for his helpful comments on an earlier draft.

Copyright 2022 by Tamar Meshel

Cite as: Tamar Meshel, Two Comes Before Four and Five: The FAA in Campbell v. Keagle, 117 Nw. U. L. Rev. Online 74 (2022), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1325&context=nulr_online.

The Unintended Consequences of the Court’s Religious Freedom Revolution: A History of White Supremacy and Private Christian Church Schools

Blaiklock, Vania | September 26, 2022

Although private church schools have historically received less attention than charter schools and other private nonsectarian schools in public discourse, in recent years, the Supreme Court’s First Amendment jurisprudence has allowed private church schools to make great strides in achieving state funding. At a time where public education is facing criticism on all sides, it seems natural that school choice supporters are more vocal than ever. This Essay takes a closer look at private church schools and their relationship to white supremacy in anticipation of the Court’s decision in Carson ex rel. O.C. v. Makin. Ultimately, that case will decide whether states must fund students taking part in a state school-aid program who choose to use that aid at sectarian schools without violating the First Amendment. Situated within the legacy of Brown v. Board of Education and Massive Resistance, this project examines distinctions between segregation academies and private church schools. I will argue that while there is a distinction between church schools and segregation academies, such schools seem to share the same purpose of maintaining mostly white classrooms. By examining private church schools through two theoretical frameworks that underpin Critical Race Theory: racial realism and strategic racism, I argue that unlike other private schools, church schools are uniquely situated to preserve white supremacy given their explicit constitutional protection under the First Amendment—a protection that the current Supreme Court will likely strengthen in Carson.

Author

American Studies Ph.D. student, College of William & Mary. J.D., William & Mary Law School, 2018; B.S. Political Science, Lee University, 2015. I would like to thank Professors Jamel Donnor and Allison Orr Larsen for their insight and advice during the preparing of this Essay.

Copyright 2022 by Vania Blaiklock

Cite as: Vania Blaiklock, The Unintended Consequences of the Court’s Religious Freedom Revolution: A History of White Supremacy and Private Christian Church Schools, 117 Nw. U. L. Rev. Online 46 (2022), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1324&context=nulr_online.

Banning Books or Banning BIPOC?

Shearer, Marisa | July 5, 2022

Following the murder of George Floyd in May 2020, social justice movements renewed calls for the country to confront the pervasive reality of systemic racism in the United States. In response to these publicized social justice movements, however, calls for book bans relating to critical race theory began rising at an unprecedented rate. Although book ban censorship is not novel, the recent shift in focus to remove critical race theory from public school libraries marks a new era of content-based censorship.

This Essay examines why current book bans targeting critical race theory are content-based restrictions that necessarily violate the First Amendment. It explores the social and legal history of book bans in the United States and discusses recent trends in book ban censorship. This Essay then identifies First Amendment “areas of nonprotection” through which book ban proponents seek to exclude race-related content and analyzes why all are pretextual fallacies that undermine freedom of speech principles and mandate diversity in the judiciary.

Author

Associate, Wheeler Trigg O’Donnell LLP. J.D., University of Denver Sturm College of Law, 2021; B.S. Exercise & Wellness, Brigham Young University, 2014. I would like to thank Professor Nancy Leong for her insight and guidance during the drafting of this Essay. I would also like to thank my husband for his support and inspiration.

Copyright 2022 by Marisa Shearer

Cite as: Marisa Shearer, Banning Books or Banning BIPOC?, 117 Nw. U. L. Rev. Online 24 (2022), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1323&context=nulr_online.

Arbitration in the Workplace: The Need for Legislative Intervention

Wright, Jeremy | June 27, 2022

Since passage of the Federal Arbitration Act in 1925, arbitral proceedings have played an important role in American dispute resolution processes. However, the frequent application of the FAA to employment contexts is a relatively new phenomenon. Over the past thirty years, the Supreme Court has heralded an explosion in the use of mandatory arbitration agreements in employee contracts, reshaping employment law and limiting workers’ access to courts. Vast swaths of American workers are now bound to agreements they know little about that provide them only precarious protections. Justifiable backlashes to this terraforming of the employment law landscape have begun to sprout up in various workplaces.

This Essay suggests that the uninhibited expansion of arbitration to employment contexts has been a net negative for American workers. While current arbitration procedures are suitable for the commercial business-to-business disputes the FAA originally envisioned, these procedures have not been appropriately modified for workplace contexts, making such cases ripe for abuse. Documenting the history of the FAA and modern Court decisions regarding it, this Essay contends that Congress will need to act boldly in order to develop a system of arbitration suitable for workers.

Author

J.D. Candidate, Northwestern Pritzker School of Law, 2022; B.S., Adelphi University, 2012. Special thanks to James R. Ferguson for thoughtful, comprehensive comments and suggestions in the development of this Essay. Thanks, as well, to Taylor Nchako and the editors of Northwestern University Law Review Online for their close reading and excellent editorial recommendations. Finally, eternal thanks to my husband, Roy Peters, who has been my steadfast rock throughout this lengthy process.

Copyright 2022 by Jeremy Wright

Cite as: Jeremy Wright, Arbitration in the Workplace: The Need for Legislative Intervention, 117 Nw. U. L. Rev. Online 1 (2022), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1322&context=nulr_online.