Online Features


Public-Law Litigation at a Crossroads: Article III Standing and “Tester” Plaintiffs

Rachel Bayefsky

Federal courts have recently grappled with an issue that falls at the intersection of Article III standing and disability, and that presents critical questions about the future of litigation promoting societal change. The issue is whether a plaintiff with disabilities has standing to challenge the failure by a place of public accommodation to provide accessibility information on its website when the plaintiff lacks concrete plans to visit the establishment. The Supreme Court heard argument in a case presenting this question—Acheson Hotels v. Laufer—in October 2023, but two months later it ruled that the case must be dismissed as moot, for case-specific reasons. The Article III standing question therefore remains unresolved, to percolate in the lower courts and plausibly to return to the Supreme Court through another vehicle. The standing issue raises doctrinal quandaries because it reveals the fault line between two models of litigation: a “public- law” model that permits plaintiffs, often backed by interest groups, to use litigation to advance public aims; and a “private-right” model that treats as the default mode of litigation a suit by A against B in tort, property, or contract. This Essay unravels the doctrinal and conceptual threads of the standing issue raised in Acheson and similar cases, and it offers proposals for courts to resolve the issue in a way that would not broadly undermine public-law litigation.

Beyond Social Media Analogues

Gregory M. Dickinson

The steady flow of social media cases to the Supreme Court reveals a nation reworking its fundamental relationship with technology. The cases raise a host of questions ranging from difficult to impossible: how to nurture a vibrant public square when a few tech giants dominate the flow of information, how social media can be at the same time free from conformist groupthink and protected against harmful disinformation campaigns, and how government and industry can cooperate on such problems without devolving toward censorship.

To such profound questions, this Essay offers a comparatively modest contribution— what not to do. Always the lawyer’s instinct is toward analogy, considering what has come before and how it reveals what should come next. Almost invariably, that is the right choice. The law’s cautious evolution protects society from disruptive change. But almost is not always, and with social media, disruptive change is already upon us. Using social media laws from Texas and Florida as a case study, this Essay suggests that social media’s distinct features render it poorly suited to analysis by analogy and argues that courts should instead shift their attention toward crafting legal doctrines targeted to address social media’s unique ills.

Whose Data, Whose Value? Simple Exercises in Data and Modeling Evaluation with Implications for Technology Law and Policy

Aileen Nielsen

Scholarship on the phenomena of big data and algorithmically-driven digital environments has largely studied these technological and economic phenomena as monolithic practices, with little interest in the varied quality of contributions by data subjects and data processors. Taking a pragmatic, industry-inspired approach to measuring the quality of contributions, this work finds evidence for a wide range of relative value contributions by data subjects. In some cases, a very small proportion of data from a few data subjects is sufficient to achieve the same performance on a given task as would be achieved with a much larger data set. Likewise, algorithmic models generated by different data processors for the same task and with the same data resources show a wide range in quality of contribution, even in highly performance-incentivized conditions. In short, contrary to the trope of data as the new oil, data subjects, and indeed individual data points within the same data set, are neither equal nor fungible. Moreover, the role of talent and skill in algorithmic development is significant, as with other forms of innovation. Both of these observations have received little, if any, attention in discussions of data governance. In this essay, I present evidence that both data subjects and data controllers exhibit significant variations in the measured value of their contributions to the standard Big Data pipeline. I then establish that such variations are worth considering in technology policy for privacy, competition, and innovation.

The observation of substantial variation among data subjects and data processors could be important in crafting appropriate law for the Big Data economy. Heterogeneity in value contribution is undertheorized in tech law scholarship and implications for privacy law, competition policy, and innovation. The work concludes by highlighting some of these implications and posing an empirical research agenda to fill in information needed to realize policies sensitive to the wide range of talent and skill exhibited by data subjects and data processors alike.

A New Age of Animal Law

Jareb Gleckel, Grace Brosofsky, Cheryl Leahy

The field of “animal law”—legal advocacy to improve the world for animals—is growing in the United States. To those unfamiliar with animal law, this growth may appear to result from a unified movement and, more fundamentally, to reflect a unified mindset that all developments in the field amount to progress for animals. For lawyers in the field, however, there is a very real and surprisingly sharp divide between animal welfare proponents, on the one hand, and animal rights proponents, on the other—a divide that influences legal strategy. This Article proposes that, with the rise of plant- and cell-based alternatives for animal products, the rights-welfare divide in animal law will start to collapse, and lawyering will play an even more central role in protecting animals. We do not, like “New Welfarists,” accept that advancements in animal welfare inevitably advance rights for animals. Rather, we believe that lawyers can, based on recent developments in the marketplace, advance animal rights through a careful selection of both abolition- and welfare-focused legal advocacy. This Article explores a combination of legal theory, economic theory, and doctrinal analysis to propose how lawyers can make the biggest difference for animals during this new age of animal law.

Suing for a Bit(coin) of Justice—Class Actions and the Role of Technology in Morrison Extraterritoriality Analysis

Edmund H.S. Brose

In the wild west of crypto, courts are slowly coming to realize that crypto assets present novel questions of law that challenge core assumptions of United States securities law. This online feature argues that a more comprehensive understanding of blockchain technology counsels courts to apply the antifraud provisions of the federal securities laws extraterritorially. Such a move will economize judicial capacity, deter fraud, and protect U.S. investors. Instead of relying on a nodular analysis, courts should look to the policy rationales of the Court’s Morrison decision, as well as the Second Circuit’s Absolute Activist opinion, to lead out of the jurisdictional morass of locating crypto transactions. In addition to relying on enumerated factual allegations laid out in Absolute Activist, courts should find that transactions occur where the parties are physically located rather than where the physical structure that underlies the crypto network is located. Further, they should utilize a plus factor of whether the company has marketed the product into a jurisdiction. As a result, courts can dispense with legal fiction and preserve the aims of the Morrison ruling. As private class actions only continue to increase in number, the time to develop a consistent and encompassing rationale is now.

Online Symposium

“Will the Meaning of the Second Amendment Change . . . ?”: Party Presentation and Stare Decisis in Text-and-History Cases

Haley N. Proctor

In the wake of the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, more Second Amendment challenges will turn on courts’ answers to factual questions about history—answers courts may formulate based on the historical evidence compiled by the parties to the dispute. These answers will become precedents that tell us what types of regulations the Second Amendment does and does not permit. What happens to those precedents when new historical evidence comes to light? This Essay argues that the Court should be willing to revisit its precedents when historical evidence demonstrates error in an earlier decision. Revisiting erroneous precedents coheres with the Bruen Court’s theory of constitutional meaning, and it answers the dissent’s concern about the imperfect nature of the historical inquiry that occurs in litigation.

“A Map Is Not the Territory”: The Theory and Future of Sensitive Places Doctrine

Joseph Blocher, Jacob D. Charles, Darrell A.H. Miller

In the wake of the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, courts are now confronted with new questions about where guns can be restricted and what justifications support those regulations. This Essay urges that the development of the doctrine governing location-based prohibitions should focus as much on the why as the where. Instead of simply isolating each location and considering the historical pedigree of gun restrictions in that place, judges should evaluate the reasons behind the sensitive places doctrine itself. We aim to recenter these first order questions to avoid haphazard doctrinal development that threatens to leave Second Amendment law incoherent and unpredictable.

Judges developing the doctrine will need to avoid several hazards. Among them: pitching historical analogies too narrowly, neglecting sensitive location mobility, and excessively focusing on locational features rather than regulatory justifications. Whatever values ultimately underpin the doctrine, they should direct the shape of location-based challenges. Whether the doctrine is grounded in safeguarding the exercise of other constitutional rights, protecting the vulnerability of specific populations, recognizing the inhibited judgment or discretion of those gathered, or other values altogether, this Essay shows why justificatory and constitutional foundations must be set before the doctrinal structure is completely built.

Finding a Common Thread: Enacting Federal Legislation to Curb Greenwashing in the Fashion Industry and Protect American Consumers

Elena M. Boushee

The fashion industry is at an environmental crossroads. United States consumers are demanding increased transparency from fashion companies regarding their impact on the environment. While consumer interest in sustainable fashion is on the rise, there is a simultaneous increase in demand for more clothing at lower price points. Despite industry and consumer focus on sustainability, there is no uniform, standardized rating system or certification scheme that provides consumers with clarity or certainty regarding environmental claims. This leaves consumers swimming in a sea of competing claims based on differing methodologies, left to sort out for themselves which claims are true and which are misleading.

To solve this growing problem, the United States government should legislatively mandate fashion companies doing business in the United States to meet specific minimum standards in order to be able to make claims about the environmental impact of their operations.

This Act should draw from the Higg Index to create a standardized framework for gathering and processing environmental impact data. It should also draw from the OEKO-TEX labeling system to allow consumers to view sustainability data at the point of purchase. The FTC should be empowered to enforce the provisions of this Act.

The Full Faith and Credit Clause and the Puzzle of Abortion Laws

Diego A. Zambrano, Mariah E. Mastrodimos, Sergio F.Z. Valente

In 2021, Texas adopted a powerful antiabortion statute—known as S.B.8—that bars anyone from performing abortions in the state of Texas after approximately six weeks of pregnancy. But instead of empowering government officials to enforce its provisions, S.B.8 relies entirely on private lawsuits. In response, California enacted A.B. 1666, which prohibits its courts from serving as a venue for S.B.8 claims or enforcing S.B.8 judgments. California’s statutory response, however, faces tricky challenges under the Full Faith and Credit Clause (FFC) of the U.S. Constitution. And, more generally, the clash between S.B.8 and A.B. 1666 raises larger questions about conflict of laws, constitutional rights, and horizontal federalism.

Grappling with A.B. 1666’s constitutionality directly, this Essay argues that the statute probably complies with the Full Faith and Credit Clause. California has a strong argument for the constitutionality of A.B. 1666’s venue provision under the public policy exception to the FFC. And California has a weaker, but still colorable, argument in support of the statute’s judgment enforcement bar under the FFC’s penal judgment exception. The central question going forward is whether courts will interpret the Full Faith and Credit Clause in a flexible manner—allowing for capacious exceptions—or apply a tight leash to state legislative schemes. Indeed, state clashes like this one continue to matter even after Dobbs overturned Roe v. Wade because states will attempt to use private civil claims to go beyond criminal law on topics like abortion, guns, and LGBTQ rights.

(More) Legal Guardrails for a Unicorn Crackdown

Alexander I. Platt

The explosive growth of private markets and the proliferation of “unicorns,” private startups valued at $1 billion or more, has pushed the U.S. Securities and Exchange Commission (SEC) away from the center of the action and towards the periphery. In 2021, the SEC announced plans to reassert its jurisdiction by forcing unicorns to go public. But those plans fizzled. By the end of last year, the legality of the maneuver had been called into question and key proponents had left the Commission, leaving the unicorn crackdown seemingly on ice.

Now the regulator is back with a new plan to reclaim its throne. In January 2023, one Commissioner proposed inventing a new mandatory periodic disclosure regime just for unicorns. Under this plan, the agency would amend Regulation D, the rule that allows unicorns and many other private companies to raise capital without going public, to require unicorns to disclose audited financial statements and to provide independent attestations regarding the issuer’s internal controls over financial reporting, both at the time of offering and on an “ongoing” basis thereafter—just as public companies are required to do under the Securities Exchange Act of 1934.

This paper questions the legality of this proposal. I show that the SEC likely lacks legal authority to impose ongoing disclosure obligations on private companies not linked to any particular offering or transaction or to condition particular private offering-related disclosure obligations on issuer size. For the second time in two years, an SEC Commissioner has proposed a regulatory overhaul to fundamentally redraw the lines between public and private companies. And for the second time in two years, that proposal appears to fall outside of the agency’s legal authority.

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