SLR Online

UkraineRussia_0

Essay

Dumping Debt and Seizing Assets

Ukrainian Countermeasures for Russian Aggression
by  Cynthia Barmore & Chris Miller  

Introduction Russia’s war on Ukraine is an unlawful use of force that has imposed needless suffering on Ukraine and its people. Through (1) its unjustified occupation and annexation of Ukraine’s Crimea region and (2) its support for antigovernment insurgencies in Ukraine’s eastern provinces of Donetsk and Lugansk, Russia is largely responsible for an unprovoked war…

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Prayer

Essay

Questioning Sincerity

The Role of the Courts After Hobby Lobby
by  Ben Adams & Cynthia Barmore  

Introduction In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court extended the protections of the Religious Freedom Restoration Act (RFRA) to Hobby Lobby, Mardel, and Conestoga Wood Specialties, three closely held corporations, and held that the contraception mandate of the Affordable Care Act substantially burdened their religious exercise.  The sincerity of their religious beliefs was…

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Courtroom

Essay

The Brady Colloquy

by  Jason Kreag  

Introduction Ensuring that prosecutors comply with their ethical and due process disclosure requirements has been a distinctly vexing problem for the criminal justice system, particularly in light of the frequency of wrongful convictions caused by prosecutorial misconduct. The problem stems from the shortcomings of the Brady doctrine and institutional forces that make it difficult to…

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Idea

Essay

Ex Post Incentives and IP in Garcia v. Google and Beyond

by  Clark D. Asay  

Introduction The Ninth Circuit’s recent opinion in Garcia v. Google, Inc. has attracted significant attention across the legal, political, and business worlds because of its possible implications for copyright law, free expression, and existing business models in the entertainment industry. The plaintiff, Cindy Lee Garcia, made several requests to Google’s YouTube to take down an…

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Essay

Network Nepotism and the Market for Content Delivery

by  Tejas N. Narechania  

Introduction This summer, the Federal Communications Commission (FCC) officially launched its third attempt to impose network neutrality rules on Internet traffic. But before the Commission could release its proposed regulations, they leaked to the Wall Street Journal and were quickly embroiled in controversy. Chief among the objections was the possibility that the new regulations would…

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rsz_1justice

Essay

Improving Prosecution of Sexual Assault Cases

Can the Justice Department Use 42 U.S.C. § 14141 to Investigate Prosecutors’ Offices?
by  Amy Knight Burns  

In December 2013, an editorial appeared in the Missoulian, a Montana-based newspaper, criticizing Missoula County Attorney Fred Van Valkenburg for a statement about his office’s handling of rape prosecutions: that attorneys in his office could review and work on those cases “whenever ‘they have spare time.’” Van Valkenburg published a defiant response. This exchange was part…

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rsz_1arrest

Essay

The Post-Boumediene Paradox

Habeas Corpus or Due Process?
by  Mary Van Houten  

Introduction In Boumediene v. Bush, the Supreme Court famously held that the writ of habeas corpus, guaranteed by the Suspension Clause, had “full effect” at Guantanamo Bay, Cuba. But Boumediene did not specify how other constitutional rights, such as the writ’s oftentimes-inextricable partner, the Due Process Clause, should influence the analysis. After Boumediene, the D.C. Circuit…

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Essay

Preliminary Injunctions Post-Mayo and Myriad

by  Jacob S. Sherkow  

The Supreme Court has recently expressed increased interest in patent eligibility, or patentable subject matter, the doctrine that limits the types of inventions eligible for patenting. Its two decisions, Mayo Collaborative Services v. Prometheus Laboratories, Inc., in 2012, and Association for Molecular Pathology v. Myriad Genetics, Inc., in 2013, represented the first broad restrictions on…

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Capture_0

Essay

Probability, Contrary Evidence, and Judicial Mistake

by  Brian Sawers  

In Business Roundtable v. SEC, the D.C. Circuit struck down Rule 14a-11, which granted certain shareholders the right to nominate directors on the corporate proxy. The decision is important not only because it halted the SEC’s efforts to regulate proxy access, but also because it imposes a new requirement of cost-benefit analysis for financial regulation.…

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Capture2

Essay

The Children in Families First Act

Overlooking International Law and the Best Interests of the Child
by  Nila Bala  

When Tarikuwa Lemma was thirteen, she was sold. She and her two sisters were adopted by an Arizona family who were told Tarikuwa’s parents died of AIDS. The truth was that her mother had died during childbirth, but her father and her large extended family were alive and well—and capable of taking care of the…

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Surveillance

Essay

Is the Foreign Intelligence Surveillance Court Really a Rubber Stamp?

Ex Parte Proceedings and the FISC Win Rate
by  Conor Clarke  

A striking feature of proceedings at the Foreign Intelligence Surveillance Court (FISC) is that the executive always wins. Between 1979 and 2012—the first thirty-three years of the FISC’s existence—federal agencies submitted 33,900 ex parte requests to the court. The judges denied eleven and granted the rest: a 99.97% rate of approval. This “win rate,” enviable…

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University

Essay

Schuette v. Coalition to Defend Affirmative Action and the Forgotten Oath

by  David R. Friedman  

Introduction Oral arguments were recently held in the controversial case of Schuette v. Coalition to Defend Affirmative Action. At issue is the constitutionality of a 2008 amendment to the Michigan Constitution that prohibits public universities from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual on the basis of race, sex, color, ethnicity, or national…

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Essay

Biomedical Patents at the Supreme Court

A Path Forward
by  Arti K. Rai  

While software patents and patent trolls dominate most patent discussions, the Supreme Court has focused on patents in the biotechnology and pharmaceutical space. In addition to deciding a number of antitrust cases involving such patents, the Court has in the last two Terms decided two cases involving the subject matter eligibility of biopharmaceutical patent claims.…

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Response

Privacy and Big Data

by  Symposium Issue  

Although the solutions to many modern economic and societal challenges may be found in better understanding data, the dramatic increase in the amount and variety of data collection poses serious concerns about infringements on privacy. In our 2013 Symposium Issue, experts weigh in on these important questions at the intersection of big data and privacy.

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Response

Public vs. Nonpublic Data

The Benefits of Administrative Control
by  Yianni Lagos & Jules Polonetsky  

This Essay attempts to frame the conversation around de-identification. De-identification is a process used to prevent a person’s identity from being connected with information. Organizations de-identify data for a range of reasons. Companies may have promised “anonymity” to individuals before collecting their personal information, data protection laws may restrict the sharing of personal data, and,…

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Response

Consumer Subject Review Boards

A Thought Experiment
by  Ryan Calo  

The adequacy of consumer privacy law in America is a constant topic of debate. The majority position is that United States privacy law is a “patchwork,” that the dominant model of notice and choice has broken down,[1] and that decades of self-regulation have left the fox in charge of the henhouse. A minority position chronicles…

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Response

Privacy Substitutes

by  Jonathan Mayer & Arvind Narayanan  

Introduction Debates over information privacy are often framed as an inescapable conflict between competing interests: a lucrative or beneficial technology, as against privacy risks to consumers. Policy remedies traditionally take the rigid form of either a complete ban, no regulation, or an intermediate zone of modest notice and choice mechanisms. We believe these approaches are…

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Response

Big Data in Small Hands

by  Woodrow Hartzog & Evan Selinger  

“Big data” can be defined as a problem-solving philosophy that leverages massive datasets and algorithmic analysis to extract “hidden information and surprising correlations.”[1] Not only does big data pose a threat to traditional notions of privacy, but it also compromises socially shared information. This point remains underappreciated because our so-called public disclosures are not nearly…

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Response

Relational Big Data

by  Karen E.C. Levy  

“Big Data” has attracted considerable public attention of late, garnering press coverage both optimistic and dystopian in tone. Some of the stories we tell about big data treat it as a computational panacea—a key to unlock the mysteries of the human genome, to crunch away the problems of urban living, or to elucidate hidden patterns…

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Response

Prediction, Preemption, Presumption

How Big Data Threatens Big Picture Privacy
by  Ian Kerr & Jessica Earle  

Big data’s big utopia was personified towards the end of 2012. In perhaps the most underplayed tech moment in the first dozen years of the new millennium, Google brought The Singularity nearer,[1] hiring Ray Kurzweil not as its chief futurist but as its director of engineering. The man the Wall Street Journal dubbed a restless…

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