SLR Online

Response

Big Data and Its Exclusions

by  Jonas Lerman  

Legal debates over the “big data” revolution currently focus on the risks of inclusion: the privacy and civil liberties consequences of being swept up in big data’s net. This Essay takes a different approach, focusing on the risks of exclusion: the threats big data poses to those whom it overlooks. Billions of people worldwide remain…

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Response

Buying and Selling Privacy

Big Data's Different Burdens and Benefits
by  Joseph W. Jerome  

Big data is transforming individual privacy—and not in equal ways for all. We are increasingly dependent upon technologies, which in turn need our personal information in order to function. This reciprocal relationship has made it incredibly difficult for individuals to make informed decisions about what to keep private. Perhaps more important, the privacy considerations at…

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Response

Three Paradoxes of Big Data

by  Neil M. Richards & Jonathan H. King  

Introduction Big data is all the rage. Its proponents tout the use of sophisticated analytics to mine large data sets for insight as the solution to many of our society’s problems. These big data evangelists insist that data-driven decisionmaking can now give us better predictions in areas ranging from college admissions to dating to hiring.[1]…

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Response

It’s Not Privacy, and It’s Not Fair

by  Cynthia Dwork & Deirdre K. Mulligan  

Classification is the foundation of targeting and tailoring information and experiences to individuals. Big data promises—or threatens—to bring classification to an increasing range of human activity. While many companies and government agencies foster an illusion that classification is (or should be) an area of absolute algorithmic rule—that decisions are neutral, organic, and even automatically rendered…

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Response

Privacy and Big Data

Making Ends Meet
by  Jules Polonetsky & Omer Tene  

Introduction How should privacy risks be weighed against big data rewards? The recent controversy over leaked documents revealing the massive scope of data collection, analysis, and use by the NSA and possibly other national security organizations has hurled to the forefront of public attention the delicate balance between privacy risks and big data opportunities.[1] The…

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Essay

Kirtsaeng and the First-Sale Doctrine’s Digital Problem

by  Clark D. Asay  

Introduction On March 19, 2013, the Supreme Court issued its highly anticipated decision in Kirtsaeng v. John Wiley & Sons, Inc. At issue was the geographic scope of copyright law’s first-sale doctrine. Historically, this doctrine has functioned as a significant limitation on the rights of copyright holders by allowing lawful owners of copyrighted works to…

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Essay

Dodd-Frank Regulators, Cost-Benefit Analysis, and Agency Capture

by  Paul Rose & Christopher J. Walker  

Introduction The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) has raised the stakes for financial regulation by requiring more than twenty federal agencies to promulgate nearly 400 new rules. Scholars, regulated entities, Congress, courts, and the agencies themselves have all recognized—even before Dodd-Frank—the lack of rigorous cost-benefit analysis in the context of financial…

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Essay

Of Arms and Aliens

by  Anjali Motgi  

In December, the tragedy in Newtown, Connecticut, thrust the Second Amendment into the forefront of national media attention once again. The massacre of schoolchildren by assault rifle reignited a debate among pundits about the meaning of the right to bear arms, but it may surprise many Americans to learn that the Second Amendment continues to…

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Essay

Anticipating Patentable Subject Matter

by  Dan L. Burk  

The Supreme Court has added to its upcoming docket Association for Molecular Pathology v. Myriad Genetics, Inc., to consider the question: “Are human genes patentable?” This question implicates patent law’s “products of nature” doctrine, which excludes from patentability naturally occurring materials. The Supreme Court has previously recognized that “anything under the sun that is made…

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Essay

School Security Considerations After Newtown

by  Jason P. Nance  

On December 14, 2012, and in the weeks thereafter, our country mourned the deaths of twenty children and six educators who were brutally shot and killed at Sandy Hook Elementary School in Newtown, Connecticut. Since that horrific event, parents, educators, and lawmakers have understandably turned their attention to implementing stronger school security measures to prevent…

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Essay

How Congress Could Defend DOMA in Court (and Why the BLAG Cannot)

by  Matthew I. Hall  

In one of the most closely watched litigation matters in recent years, the Supreme Court will soon consider Edith Windsor's challenge to the Defense of Marriage Act (DOMA). The Court surprised many observers by granting certiorari, not only on the merits of Windsor's equal protection and due process claims, but also on the question whether…

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Essay

Forgetting Romer

by  Susannah W. Pollvogt  

What are the implications of the Court’s decision to grant certiorari in Hollingsworth v. Perry? Advocates of marriage equality may worry that the Court granted certiorari to overturn the decision. But they should also worry that the Court accepted certiorari to affirm the decision on the same narrow legal and factual grounds relied upon by…

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Essay

Privilege and the Belfast Project

by  Will Havemann  

In 2001, two Irish scholars living in the United States set out to compile the recollections of men and women involved in the decades-long conflict in Northern Ireland. The result was the Belfast Project, an oral history project housed at Boston College that collected interviews from many who were personally involved in the violent Northern…

Online

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Essay

Software Speech

by  Andrew Tutt  

When is software speech for purposes of the First Amendment? This issue has taken on new life amid recent accusations that Google used its search rankings to harm its competitors. This spring, Eugene Volokh coauthored a white paper explaining why Google’s search results are fully protected speech that lies beyond the reach of the antitrust…

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Essay

The Hunt for Noncitizen Voters

by  Fatma Marouf  

Over the past year, states have shown increasing angst about noncitizens registering to vote. Three states—Tennessee, Kansas, and Alabama—have passed new laws requiring documentary proof of U.S. citizenship in order to register. Arizona was the first state to pass such a requirement, but the Ninth Circuit struck it down in April 2012, finding it incompatible…

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Essay

Dahlia v. Rodriguez

A Chance to Overturn Dangerous Precedent
by  Kendall Turner  

In December 2007, Angelo Dahlia, a detective for the City of Burbank, California, allegedly witnessed his fellow police officers using unlawful interrogation tactics. According to Dahlia, these officers beat multiple suspects, squeezed the throat of one suspect, and placed a gun directly under that suspect’s eye. The Burbank Chief of Police seemed to encourage this…

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Essay

The Violence Against Women Act and Double Jeopardy in Higher Education

by  Andrew Kloster  

The reauthorization of the Violence Against Women Act (VAWA), set to expire this year, has elicited predictable partisan rancor. While there is little chance of the reauthorization being enacted by Congress so close to an election, the Senate draft includes a provision that raises interesting issues for the rights of students involved in sexual assault…

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Essay

Pulling the Plug on the Virtual Jury

Why Khalid Sheikh Mohammed Should Not Be Tried at Guantanamo Bay by Jurors Sitting in New York City
by  Nicolas L. Martinez  

Most people probably figured that the debate over where to try alleged 9/11 mastermind Khalid Sheikh Mohammed (“KSM”) had ended. Indeed, it has been well over a year since Congress forced Attorney General Eric Holder to reluctantly announce that KSM’s prosecution would be referred to the Department of Defense for trial before a Guantanamo military…

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Reply

The Obama Justice Department’s Merger Enforcement Record

A Reply to Baker and Shapiro
by  Daniel A. Crane  

This Essay is a reply to Jonathan B. Baker & Carl Shapiro’s Evaluating Merger Enforcement During the Obama Administration.

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Essay

Politicizing the Supreme Court

by  Eric Hamilton  

To state the obvious, Americans do not trust the federal government, and that includes the Supreme Court. Americans believe politics played “too great a role” in the recent health care cases by a greater than two-to-one margin. Only thirty-seven percent of Americans express more than some confidence in the Supreme Court. Academics continue to debate…

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