All Online Essays

The shocking reaction to the recent murder of a major health insurance CEO has heightened awareness of widespread discontent with coverage restrictions, among them the exclusion of preexisting conditions. Yet it is expected that the new Trump administration will roll back some consumer protections under the Affordable Care Act (ACA). One such measure would permit greater availability of short-term health insurance policies that are exempt from ACA mandates, including the requirement that policies cover preexisting conditions. Allowing their sale is justified by the belief that consumers should be able to choose a lower-cost policy with restricted coverage, in preference to a higher-cost, ACA-compliant policy. That belief depends on consumers’ understanding of the policies’ coverage differences. Federal rules therefore require sellers of exempt policies to disclose the exemption. However, the effectiveness of such disclosures is untested. This Article presents findings from a controlled experiment, showing that neither the disclosure current regulations require, nor a stronger and more complete one devised for this study, fully succeed in communicating the impact of the preexisting-condition exclusion. We conclude that the problem is in part an intractable difficulty in formulating the exclusion in clear language that also serves the exclusion’s actuarial purpose of controlling the insurer’s risk exposure. Because disclosure that reasonably ensures consumer understanding may not in fact be possible, policymakers should consider either barring the exclusion or requiring it be framed in more specific terms, even though that framing may not fully achieve the exclusion’s actuarial purpose.

Authors

Ira M. Ellman, Distinguished Affiliated Scholar, Center for the Study of Law and Society, University of California, Berkeley School of Law. Ahmed E. Taha, Professor of Law, Pepperdine University Caruso School of Law. Michael J. Saks, Regents Professor, Professor of Law, Sandra Day O’Connor College of Law, Arizona State University. Mark A. Hall, Fred D. and Elizabeth L. Turnage Professor of Law and Public Health, Wake Forest University School of Law and School of Medicine.

Copyright  2025  by  Ira M. Ellman,  Ahmed E. Taha,  Michael J. Saks  &  Mark A. Hall

Cite as: Ira M. Ellman, Ahmed E. Taha, Michael J. Saks & Mark A. Hall, Why Explaining the Impact of Excluding Preexisting Conditions From a Health Insurance Policy Is So Difficult: Experimental Evidence and Policy Implications, 120 Nw. U. L. Rev. Online 59 (2025), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1358&context=nulr_online.

This Essay examines the heavy costs and punitive effects of mandatory in-person misdemeanor criminal court appearances in the United States, with a specific focus on New York City. Through analysis of current practices, it builds on an emerging body of scholarship addressing personal appearances in a new era characterized by higher rates of pretrial release resulting from sweeping bail-reform legislation. Within this context, scholars have finally begun to scrutinize the personal-appearance requirement by focusing on the overly harsh penalties for failure to appear. This Essay goes one step further by calling into question the practice of requiring misdemeanor defendants to show up in person for routine appearances in the first place.

The Essay identifies how mandatory appearances impose severe collateral consequences—including job loss, educational disruption, and family hardship—on individuals whose cases are generally resolved without criminal convictions or jail time. It argues that this practice disproportionately burdens economically disadvantaged populations while failing to serve any meaningful judicial or public safety purpose. Finally, it challenges the legal necessity and policy wisdom of universal in-person appearance requirements, particularly in light of lessons learned during the COVID-19 pandemic about the viability of remote alternatives. The Essay concludes by proposing that people charged with misdemeanors be permitted to waive in-person appearances for nonessential court dates, preserving judicial and public resources while mitigating the punitive effects of prolonged court involvement on criminal defendants and their communities.

Author

Lauren Roberts, Visiting Assistant Professor, Brooklyn Law School, and former 30-year public defender at the Legal Aid Society in Bronx County, New York. Special thanks to Jocelyn Simonson and Jesse Bennett for their helpful feedback and invaluable support. Thanks also to Zhouri Li and Julia Ferguson for their excellent research assistance. This Essay also benefitted from comments at the Brooklyn Law School Junior Faculty Workshop.

Copyright 2025 by Lauren Roberts

Cite as: Lauren Roberts, The Cost of Showing Up, 120 Nw. U. L. Rev. Online 1 (2025), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1356&context=nulr_online.

This Note proposes a new framework for defining and differentiating between “sharenting” and the actions of family influencers. Sharenting refers to parents and guardians who post content about their children on social media platforms. The legal field currently views parents posting about their children on social media as conduct protected by both the parents’ liberty interests under the Fourteenth Amendment and as a freedom of speech issue protected by the First Amendment. However, the actions of family influencers go beyond the definition of sharenting in terms of the amount of content posted and the harms produced by said posts. As such, family influencing should be viewed within a separate sphere of conduct where the privacy interests of children allow for more state intervention than what has previously been considered acceptable.

While the privacy interest of children has not been largely expounded upon in the legal field, this Note argues that a few Supreme Court cases have laid the foundation for the recognition of such interests. Should the law build upon this foundation, a new balance should be struck between the independent rights of children and the rights of their parents. This new balance would allow states to better address the harms of the evolving digital landscape and the gaps in First Amendment jurisprudence.

Author

J.D. Candidate, 2025, Northwestern Pritzker School of Law; M.A.M.C., University of Florida. Thank you to the Northwestern University Law Review Online team for their work and dedication in getting this piece to publication. A special thank you to my friends and family for being my sounding boards, cheerleaders, and greatest joy for the past three years.

Copyright 2025 by Taylor Lockett

Cite as: Taylor Lockett, Smile for the Camera: Balancing Parental Rights and Children’s Privacy in the Age of Family Influencers, 119 Nw. U. L. Rev. Online 355 (2025), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1355&context=nulr_online.

Prosecution may have an unexpected role to play in the climate crisis. Now that the Supreme Court has put obstacles in the way of meaningful regulatory solutions, the public must consider bold, new measures to slow the burning of fossil fuels that are the major cause of climate change. Given the stakes, the time has come to give serious consideration to criminal accountability where harms, especially deaths, caused by climate change are directly traceable to corporate or individual conduct. While regulatory efforts must continue, homicide cases in particular—so long as they are legally sound—offer a compelling alternative that would present fossil-fuel companies with new and real consequences that could advance a critical regulatory need via prosecution.

Author

Lecturer, Indiana University Maurer School of Law. Thank you to Aaron Regunberg, Don Braman, and David Arkush for their feedback on this Essay; thank you also to Leandra Lederman for her early encouragement to research, write, and publish.

Copyright 2025 by Cindy J. Cho

Cite as: Cindy J. Cho, Climate Prosecution as Climate Regulation, 119 Nw. U. L. Rev. Online 323 (2025), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1354&context=nulr_online.

This article is a reply to David G. Epstein’s R.R. v. M.H. and Steve Goodman and John Prine: The First Case a Law Student Should Read, 119 Nw. U. L. Rev. Online 300 (2025), https://scholarlycommons.‌law.northwestern.edu/cgi/viewcontent.cgi?article=1352&context=nulr_online.

Author

Professor of Bankruptcy Law and Practice, and Edward Avery Harriman Lecturer in Law, Northwestern Pritzker School of Law.

Copyright 2025 by Bruce A. Markell

Cite as: Bruce A. Markell, Not Wrong, but Not Quite Right: A Reply to David Epstein, 119 Nw. U. L. Rev. Online 315 (2025), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1353&context=nulr_online.

Communicating concisely, compellingly, and cogently constitute critical competencies of law clerks. But despite the centrality of writing to clerking, most judges still subscribe to a hasty, status-oriented, scattershot hiring approach that relies on conventional proxies for capability—great grades, stellar schools, close connections—in lieu of a skills-based evaluation. This is a short-sighted strategy that tends to yield inferior results. When a clerk’s drafting is deficient, the judge must bear the brunt of their selection, devoting disproportionate time to getting the clerk’s work fit to file or even shifting assignments to other clerks. And placing a premium on rankings and relationships perpetuates the same clerk profiles and predispositions in chambers.

Rather than rewarding candidates who have the proper pedigree and know the “right” people, a growing number of judges require candidates to showcase their skills through a writing assessment. These judges recognize that, with their dockets more congested than ever, hiring plug-and-play clerks—and proficient writers—is critical to efficiently managing their ballooning caseloads. Public- and private-sector employers widely endorse this more rigorous vetting process to promote transparency, ensure they’re selecting strong writers, and give otherwise overlooked candidates a chance to show their stuff.

Based on in-depth interviews about the benefits of a writing assessment to audition candidates, this Essay calls for judges to adopt a standardized writing exercise to broaden access to clerkships. A writing assessment better gauges how well candidates can think and write—the core skills of clerking. Assessing writing at the outset can expand the talent pool and reduce bias, elevating first-generation and historically underrepresented candidates who may lack the contacts and clout to mount a successful clerkship campaign. A writing assessment can function as an equalizer.

Author

Director of Legal Research and Writing, Lecturer in Legal Practice, and Senior Research Scholar, Yale Law School. I am grateful to Rochelle McCain for sharing her knowledge of the clerkship landscape and serving as a sounding board. I appreciate Catherine Cazes’s eagle eye; her extensive feedback elevated this Essay. And thanks to the Northwestern University Law Review Online team for their hard work and helpful suggestions. I dedicate this Essay to Jason and Camilla Lichter for their unwavering support and good humor.

Copyright 2025 by Cecilia A. Silver

Cite as: Cecilia A. Silver, Write On: Skills Assessments in Clerkship Hiring, 119 Nw. U. L. Rev. Online 278 (2025), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1351&context=nulr_online.

The Trojan Horse strategy, historically employed in warfare, finds a modern adaptation in the advocacy efforts of animal welfare activists. They seek to address the dire conditions within concentrated animal feeding operations (CAFOs) through the guise of food safety regulatory reform. This Note explores contemporary challenges in livestock welfare, particularly within the context of CAFOs dominating the agricultural landscape. Despite mounting evidence of the detrimental effects of CAFOs on both public health and animal well-being, federal legislation remains elusive due to the powerful influence of Big Agriculture on lawmakers and regulatory bodies. Drawing inspiration from Upton Sinclair’s seminal work The Jungle, animal advocates aim to leverage public concern over food safety to advance livestock welfare initiatives. But current political and judicial landscapes present insurmountable barriers to successful implementation of this strategy. Through an analysis of historical precedents, legislative challenges, and judicial doctrines, this Note cautions against placing undue reliance on food safety reform as a panacea for addressing the systemic issues within the meat and dairy industries. Instead, it advocates for a more nuanced approach to advocacy—one that considers the complex interplay of political, economic, and social factors shaping the animal welfare discourse—and opts for a more prudent, albeit slower, strategy for securing federal change.

Author

J.D. Candidate, 2025, Northwestern Pritzker School of Law; B.S.M., Tulane Freeman School of Business. Thank you to the Northwestern University Law Review Online team for helping get this piece to publication. Thank you to my friends and family for helping get me there too. Special thanks to Rowan Aragon, whose compassion for animals and drive for change inspires my own, and to Dheven Unni for sticking with me every step of the way of Volume 119.

Copyright 2025 by Colleen J. McAulay

Cite as: Colleen J. McAulay, Losing Battle, Pyrrhic Victory: Federal Barriers to Improving Livestock Welfare, 119 Nw. U. L. Rev. Online 237 (2025), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1350&context=nulr_online.

This Article examines the concept of “play” (at its simplest, human beings doing things for fun or recreational purposes) in the context of adverse possession law. Specifically, it looks at how adverse possession law in the United States has treated the adverse possessor’s mere (or sole) recreational use of land. This Article makes two arguments: one descriptive and one normative. The descriptive point is that courts across the United States have historically treated sole recreational use by adverse possessors of disputed land inconsistently. The normative argument is that courts should give more deference and weight to “play”—or recreational use of land—when adjudicating adverse possession cases. This approach would bring adverse possession jurisprudence more in line with the predominant justifications for the adverse possession doctrine as a whole. The concept of “play” has made inroads in other areas of legal scholarship, such as in arguments for: a constitutional right to play sports; a recognized fundamental right of play in American jurisprudence using online gaming; and the importance of “play” in the American judiciary’s protection of vulnerable minorities. Still, it has not made inroads in property law. At its core, this Article hopes to correct this.

Author

Professor of Law, Peking University School of Transnational Law; Affiliated Scholar, Transnational Legal History Group, Center for Comparative and Transnational Law, Chinese University of Hong Kong.

Copyright 2024 by Norman P. Ho

Cite as: Norman P. Ho, Play and Adverse Possession, 119 Nw. U. L. Rev Online. 222 (2024), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1348&context=nulr_online

An increasing amount of securities fraud is perpetrated using social media. A common scheme involves a pump-and-dump, where a perpetrator purchases stock at a low price, shares false information about the issuer’s future prospects that prompts others to buy the stock thereby inflating the price, and then dumps their shares at a profit. Social media provides a convenient means to reach—and defraud—thousands of investors. Still, established securities law doctrine prohibits pump-and-dump schemes regardless of the medium used to disseminate misleading information.
A recent case has called the longstanding prohibition of these schemes into question. United States v. Constantinescu raises a structural barrier to liability for pump-and-dump schemes that effectively immunizes fraud perpetrated on social media. By effectively ruling that a victim must have directly surrendered property to the fraudster, the Constantinescu court all but guarantees that any investor who purchased stock in the stock market on the basis of a social media fraudster’s misinformation cannot recover—even if they lost money. This ignores longstanding tenets of economic theory and contradicts established securities law doctrine. Further, the reality of today’s markets means that nearly every pump-and-dump scheme using social media will involve investors purchasing stock on the stock market.

Author

Albert J. Ruffo Assistant Professor of Law, Santa Clara University School of Law.

Copyright 2024 by Sue S. Guan

Cite as: Sue S. Guan, Fraud on the Social Media Market, 119 Nw. U. L. Rev Online. 206 (2024), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1347&context=nulr_online.

Over one million children are homeschooled each year in the United States. While many of these children thrive, others suffer from a lack of adequate education, socialization, and access to mandatory reporters to escape familial abuse. For those children, there are no avenues through which they can assert their right under state law to a public education. Courts, however, are generally reluctant to engage with this topic for fear of interfering with parents’ rights. State legislatures, influenced by homeschooling rights organizations, have also failed to act.

This Essay offers a concrete solution to this problem—stepping in to protect children where courts and legislatures have not. The Essay builds on a Note by Carmen Green, which proposed that courts apply a modified version of the procedure set out in Bellotti v. Baird to cases where children assert their right to public education against their parents’ wishes. In Bellotti, the Supreme Court allowed minors seeking abortion to bypass parental consent. Under this framework, a child would be permitted to pursue a public education without parental consent if she can prove either that (1) her maturity level is that of an eighteen-year-old or older or that (2) receiving a public education is in her best interest. This Essay expands on Green’s theoretical suggestion, providing a guide to courts on how to apply Bellotti in practice.

While this proposal raises some implementation problems, it is a crucial step toward allowing children to assert their fundamental right to an education. For the children whose lives would be impacted by this proposal, the adoption of some kind of pathway to public education is of the utmost importance.

Authors

Jamie Miller: J.D. Candidate, University of Virginia School of Law, J.D. 2024.

Samantha Blond: J.D. Candidate, University of Virginia School of Law, J,.D. 2024. We would like to thank Professor Andy Block, whose class inspired this Essay, and Professor Gerard Robinson whose thoughtful feedback was endlessly helpful. We are also grateful to Julie Mardini for her invaluable advice, as well as Lauren Bamonte, Maya Kammourieh, Niki Hendi, Sydney Eisenberg, and Sydney Hallisey for their helpful edits. Lastly, we would like to thank the editors of the Northwestern Law Review Online—Brianne Wylie, Matthew Chu, Michael Judah, Rachel Rucker, Micaela Yarosh, Joseph Wolf, Marisa McGettigan, Will Cutler, Nat Hartl, and Stuart Massa—for their hard work on this Essay.

Copyright 2024 by Jamie Miller and Samantha Blond

Cite as: Jamie Miller & Samantha Blond, The Missing Interest: Enforcing a Child’s Right to Public Education, 119 Nw. U. L. Rev Online 184 (2024), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1349&context=nulr_online.

The defense must make numerous decisions throughout the course of a criminal case. Some decisions—such as whether to move to dismiss a complaint, to challenge an arrest, to challenge a search warrant, or to invoke the right to a preliminary hearing—hinge on the concept of probable cause. Such decisions require a lawyer’s training and experience and are therefore traditionally allocated to defense counsel, not the defendant. However, there is one exception: the decision to have or waive the preliminary hearing, or “prelim,” is ordinarily left to the defendant. Allocating to the defendant the decision to have or waive the prelim creates numerous problems. This Article therefore argues that such a decision should, like other probable cause-related decisions, normally be allocated to the defense lawyer. To support this claim, this Article mines case law for the criteria used to allocate decisions in other contexts and creates a conceptual framework for the allocation of decision-making authority. It then applies this framework to the decision to have or waive the prelim and demonstrates that, with one exception, this decision should rest with defense counsel rather than the defendant.

Author

Criminal Defense Lawyer, Cicchini Law Office LLC, Kenosha, Wisconsin. J.D., summa cum laude, Marquette University Law School (1999); C.P.A., University of Illinois Board of Examiners (1997); M.B.A., Marquette University Graduate School (1994); B.S., University of Wisconsin—Parkside (1990). Visit www.CicchiniLaw.com for more information.

Copyright 2024 by Michael D. Cicchini

Cite as: Michael D. Cicchini, Defense Lawyer Decision-Making and the Preliminary Hearing, 119 Nw. U. L. Rev Online. 165 (2024), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1345&context=nulr_online.

Medical devices diagnose disease, prolong life, and improve health. But when defective, they can injure, disable, and kill. To successfully sue manufacturers for injuries caused by medical devices, patients must overcome the defense that federal law preempts, or displaces, state law claims. The Supreme Court has provided a framework for answering this question with respect to most devices. However, it has never confronted how it would apply the framework to an innovative but growing class of devices—de novo devices—that may incorporate novel technologies like artificial intelligence and machine learning. This Essay tries to answer this question as a predictive and normative matter. From a predictive perspective, the Essay argues that the Court’s increasingly textualist orientation suggests it will reject preemption of claims against manufacturers of de novo devices, though the result is not certain. From a normative perspective, the Essay argues that allowing claims against de novo device manufacturers forces risk internalization, provides a regulatory failsafe for innovative technology, and preserves innovation without sacrificing patient health.

Authors

David A. Simon: Associate Professor, Northeastern University School of Law. Carmel Shachar: Assistant Clinical Professor of Law; Faculty Director, Health Law and Policy Clinic, Harvard Law School. I. Glenn Cohen: James A. Attwood and Leslie Williams Professor of Law & Deputy Dean, Harvard Law School; Faculty Director, Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics, Harvard Law School. Professor Cohen reports that he is a member of the ethics advisory board for Illumina and the Bayer Bioethics Council and an advisor for World Class Health. He was also compensated for speaking at events organized by Philips with the Washington Post, attending the Transformational Therapeutics Leadership Forum organized by Galen Atlantica, and retained as an expert in health privacy, gender-affirming care, and reproductive technology lawsuits.

Copyright 2024 by David A. Simon, Carmel Shachar, I. Glenn Cohen

Cite as: David A. Simon, Carmel Shachar, & I. Glenn Cohen, Innovating Preemption or Preempting Innovation?, 119 Nw. U. L. Rev. Online 137 (2024), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1344&context=nulr_online.

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 Dondzik

Cite as: Ryan Dondzik, 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.

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.

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.

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.