A study of smartphone users found that seventy-nine percent of respondents have their phones on or near them for almost their entire waking day. By 2017, an estimated 67.8% of the U.S. population will use smartphones. The increased adoption of smartphones changed the detail and frequency of how people interact with each other and within their communities, yielding intimate information about the individual user’s relationships. In June 2013, Edward Snowden, a former National Security Agency (NSA) contractor, became notorious for leaking classified information detailing a government program to collect cell phone metadata, also known as transactional information, and location information on virtually every U.S. citizen. Transactional information is data individual users generate when their cell phones interact with outside entities, including businesses, organizations, and websites. Snowden admits that he leaked the information to start a public debate about privacy and the morality of the government collection program. The leaked information, however, may have created a new problem for cell phone service providers in forcing them to afford their subscribers constitutional privacy protections, a role usually reserved to the state.
This Note will examine the history of the state action doctrine and the privacy protections afforded by the Constitution. In Part II, this Note will explore the purpose behind the state action doctrine’s construction. Next, this Note will describe the test for applying the state action doctrine to private conduct and identify exceptions to state action. This Note will then explain cell phone carriers’ technology, infrastructure, and data collection practices. This Note will also discuss the applications of location data and will identify laws governing data collection of individual subscribers. Also in Part II, this Note will consider the privacy protections guaranteed by the Constitution and the doctrinal approaches to analyzing privacy rights. This Note will then argue why the state action doctrine must apply to cell phone carriers. Finally, this Note will argue cell phone subscriber location data deserves constitutional protection under the Fourth Amendment.
In the Internet age, protecting the privacy interests of individuals who predecease their digital accounts has resulted in ongoing legal uncertainty. Much of the ambiguity stems from inconsistent regulation of digital privacy by federal and state governments, as well as private entities. On one hand, federal law prohibits Internet service providers from disclosing content without owner consent or government order. On the other hand, state judges grant court orders to grieving families, demanding that service providers, such as Facebook and Yahoo!, allow access to the decedent’s account. Providers then argue that such disclosure orders constitute a breach of contract because of preexisting privacy terms between the user and the provider.
To understand the state of the controversy, this Note will begin with a historical discussion of the constitutional right to privacy and its evolution as it relates to digital privacy. Further, this Note will discuss how federal, state, and private actors regulate digital privacy and this Note will posit that a discrepancy exists among such regulations. This Note will then discuss how diverging regulations might trigger a debate in favor of a posthumous right to privacy, especially due to the lack of uniform regulation by federal, state, and private actors. The Analysis section will examine the evolution of copyright and the right of publicity into posthumous rights and the strategic use of such doctrines to preserve privacy after death. Finally, this Note will conclude with considerations of the future of a posthumous privacy right.
Foreign corruption has run rampant for a tremendous amount of time. To directly address this problem, Congress enacted the Foreign Corrupt Practices Act (FCPA) in 1977. Corruption has adverse effects on democratic institutions; it deteriorates public accountability and redirects resources away from national priorities, including public “health, education, and infrastructure.” The impact of corruption abroad can spread rapidly through the global marketplace and ultimately cause chaos domestically. Due to their substantial international impact, foreign bribery and corruption are deemed a threat to U.S. national security. For these reasons, enforcement of the FCPA is a continuing priority for the United States.
This Note will first grapple with the definition of corruption. This Note will then explore the background of the FCPA, as well as its purposes, provisions, and enforcement vehicles. Next, it will discuss corruption as a global problem, investigating other global anticorruption initiatives, which have proven effective. Thereafter, it will provide a brief history of Afghanistan as a war-torn, underdeveloped, corruption-driven country. It will also delve into the legal history of Afghanistan. It will discuss corruption’s adverse effects on the country. Finally, this Note will analyze the possible effectiveness of the FCPA in Afghanistan and how the United States overcomes cultural barriers, in addition to the lack of security, to do its best for a damaged country.
From television commercials and magazine ads to labels and packaging, food and beverage manufacturers spend a significant amount of money advertising their products. Congress passed the Food, Drug, and Cosmetic Act (FDCA) to ensure that food and beverage manufacturers do not mislead or deceive consumers with their advertising. The FDCA’s purpose is to protect consumers from adulterated and misbranded food and beverages. The FDCA prohibited misbranding food and beverages using false or misleading labels to further this goal.
This Note begins with an outline of the history of federal food regulation in the United States. It discusses the FDCA’s origin and purpose and its subsequent amendment, the NLEA. This Note will then discuss the NLEA’s preemption provision and its interplay with private litigation brought under state consumer protection laws. It will also examine the FDCA’s interaction with private litigation brought under the Lanham Act. The discussion then moves to the Supreme Court’s decision in POM Wonderful LLC v. Coca-Cola, Co. This Note will proffer that the Court’s conclusion that the Lanham Act is a necessary complement to the FDCA reveals major gaps in the FDA’s enforcement of the FDCA. This Note will then examine the reasons for the FDA’s sporadic enforcement of the FDCA. Contrary to the Court’s reasoning in POM, this Note will argue the Lanham Act is not a suitable complement to resolve the FDCA enforcement issues because manufacturers do not bring these suits to advocate for consumer protection, but rather to self-serve their own commercial interests. Accordingly, this Note will offer an alternate solution aimed at protecting consumer interests, namely, consumer-initiated suits to enforce label regulations, brought under state consumer protection laws.
Infringement of patent claims is a statutory tort. The United States Code governs direct infringement under 35 U.S.C. § 271(a), which encompasses infringement of both apparatus and method claims. Infringement of a method claim requires its use by the performance of each step of the claimed method. In Akamai Technologies, Inc. v. Limelight Networks, Inc., the Court of Appeals for the Federal Circuit addressed the issue of liability for divided infringement of method claims. Specifically, the court addressed whether a defendant, in an arms-length relationship with a third party, can be liable for direct infringement when it performs some steps of a method claim and the third party performs the remainder of the steps. The court held the defendant liable for direct infringement because the third party’s actions are attributable to the defendant, but the court also maintained that only single entities can be liable for direct infringement.
The Puzzling Persistence of Acquitted Conduct in Federal Sentencing, and What Can Be Done About It
Barry L. Johnson
One might think, at first glance, that the recognition of a Sixth Amendment right to have a jury rather than a judge determine relevant sentencing facts would put an end to the use of acquitted conduct. One would be wrong, however, at least so far. The federal appellate courts have been unanimous in holding that reliance on acquitted conduct to enhance an offender’s sentence is still permissible under the now-advisory Guidelines. While recent academic commentary has largely taken the opposing view on the constitutionality of acquitted conduct, there is currently little reason to believe that the courts will be persuaded to change their views on this issue any time soon.
War and Justiciability
Stephen I. Vladeck
[O]ne may wonder why now is an especially appropriate moment to reflect on the role of the federal courts in civil suits challenging military operations, even more so given the winding down of hostilities in Afghanistan and the settled nature of the judicial role in the Guantánamo habeas litigation. But the prompt for this paper lies in two developments that are relatively recent: the proliferation of the use of private military contractors to conduct traditional military functions (and the concomitant rise of civil suits challenging such conduct), and the blurring of conventional conceptions of the “battlefield” (and, as in the counter-piracy context, of the line between law enforcement and combat operations). For better or worse, these developments have been—and will likely continue to be—litigation-provoking, prompting an ever-growing array of courts to have to consider these same issues in an ever-growing array of contexts. Thus, this paper attempts to provide a more coherent and convincing explanation for when judicial reticence to intervene in such disputes is and is not appropriate, hopefully before the doctrine becomes completely unmoored from its analytical and normative justifications.
How the SEC’s Crowdfunding Rules for Funding Portals Save the Two-Headed Snake: Drawing the Proper Balance Between Integrity and Cost
Patrick Archambault
The CROWDFUND Act required the SEC to adopt rules to facilitate equity crowdfunding. Although the final rules do not go into effect until 180 days after publication in the Federal Register, preliminary observations can be made. Both the CROWDFUND Act and the SEC’s final rules impose restrictions for intermediaries, particularly for the newly introduced funding portals. These restrictions raise the question of whether or not the SEC’s rules create an appropriate balance between adequately protecting unaccredited investors and allowing funding portals to act as gatekeepers. The specific concern to investors in donating capital to these funding portals is that investments may be subject to fraud. Due to funding portals’ novelty, this Note pays special attention to funding portals in the context of the SEC’s final rules.
Congressional Funding Speaks Louder than Presidential Words: Cold, Hard Cash Versus the Recognition Power
Eliza S. Bailey
In light of presidents’ consistently requested and approved defense funding to Israel, the Supreme Court confirms in Zivotofsky that the Executive’s contemporary recognition power no longer harbors any significance. In Zivotofsky, while the Executive rightfully prevailed, each Justice refused to acknowledge the Executive’s hypocritical stance: presidents argue no country has sovereignty over Jerusalem, yet presidents continually provide military funding to Israel to further Israeli occupation and control of Jerusalem. For well over half of a century, the Executive has approved substantial military aid to Israel by signing into law congressionally-backed legislation to provide weapons and funding overseas. Therefore, as the Supreme Court does not address the Executive’s financial recognition of Israel, but rather states the Executive’s spoken recognition is at odds with Section 214(d) in Zivotofsky’s case, the Supreme Court reduces the recognition power to a frivolous formality, one with little tangible impact in the modern realm of foreign policy.
This Note will address the U.S. military funding at odds with the Supreme Court’s ruling that the Executive’s claim of neutrality is paramount and trumps the exercise of Section 214(d) as the United States must “speak with one voice” on the matter of Israeli-Palestinian foreign policy.
If the Shoe Fits: Sizing Up the Applicability of IvI Exclusions to the FDIC
Julianne DeLeo
Holes in the bank’s D&O policy’s coverage are perilous. They may require the directors to pay out-of-pocket damages, and the FDIC may forego payment. One of the common gaps that exists in the D&O policy’s coverage is the Insured v. Insured (IvI) exclusion. Generally, the IvI exclusion excuses the insurer from payment when a claim is brought by, or on behalf of, an insured party against an insured party. This Note will consider the circumstances in which an IvI exclusion to a D&O policy may excuse an insurer from coverage when the FDIC brings claims against the directors of a failed bank.
Brought Back to Life: Massachusetts Supreme Judicial Court Resuscitates Parole Eligibility for Juveniles Convicted of First-Degree Murder
Erin D. Knight
In abiding by legislated law, judges must often implement mandatory sentences for some crimes, negating the ability of that judge to consider the inherently distinct characteristics of a minor offender. The United States Supreme Court in Miller v. Alabama held the sentencing term of mandatory life without the possibility of parole (LWOP) unconstitutional for juvenile homicide offenders, classifying LWOP as “cruel and unusual punishment” when applied to juveniles under the Eighth Amendment. In turn, the Supreme Judicial Court of Massachusetts (SJC) took the position that mandatory and discretionary sentences of LWOP under Massachusetts General Laws chapter 265, Section 2 shall no longer apply to juveniles and violate Article 26 of the Massachusetts Declaration of Rights. As a result, individuals currently serving LWOP sentences following a homicide conviction as a juvenile are now eligible for parole if they have served a term of at least fifteen years. In issuing this historic relief, the SJC noted the broader protections afforded to citizens under Article 26, yet discussing its similarity to the Cruel and Unusual Punishment clause of the Eighth Amendment. The SJC, however, failed to parse why Article 26 offers these heightened protections, and in failing to do so the court erred in proscription of discretionary LWOP sentences for the most heinous of juvenile offenses.
This Note will examine the relationship between the Legislature and state courts in sentencing criminally convicted juveniles. This Note will also seek to clarify perceptions as to the current state of the law behind the mandatory sentencing of minors; the concept of individualized assessment; and the disparities between trying an adult and, alternatively, a child under the age of eighteen. Finally, this Note will analyze the extended protections created under Article 26 and the SJC’s scrutiny of the Massachusetts General Court’s (MGC) sentencing schemes.
Are You Afraid of the Dark?: How the New York Attorney General Is Shedding Light on Dark Pools and High Frequency Trading
Jordan M. Marciello
Until June 2015, there had been little legal action against the firms taking advantage of investors through high-frequency trading (HFT). The New York Attorney General (NY AG), Eric Schneiderman, brought the first big case under a little-known state law from the 1920s, the Martin Act, which grants the NY AG the power to regulate and investigate securities fraud. In efforts to boost investor confidence and ensure the markets work for the entire general public, Schneiderman hopes to stifle the fundamentally unfair situations that HFT has created at the expense of the rest of the market.
This Note aims to provide a useful overview of the development of the U.S. stock market and show how lawsuits, such as the one against Barclays, will shape the U.S. stock market’s future. Part II of this Note will present a detailed assessment of HFT, relevant SEC regulations, and a history of the Martin Act. Part III will discuss the current case against Barclays and how regulators should proceed in handling contemporary dark pool and HFT crises affecting the U.S. stock market and, in turn, its investors. This Note advocates for an approach that seeks a balance between a free market economy and clear regulations, so as to avoid further market exploitation.
Overdosing on Authority: Negative Side Effects of the FDA’s Proposal for Generic Label Changes May Include Increased Costs and Liabilities
Cassandra L. Santoro
Despite generic manufacturers’ forced reliance on brand-name warning labels, brand-name manufacturers are immune from liability for failure-to-warn or negligence claims arising from generic drugs. In a majority of jurisdictions—as long as the drug that caused the injury was generic—brand-name manufacturers escaped negative judgments, even though they played an integral role in the initial development of the drug and its warning label. On an issue of first impression, however, the California Court of Appeals in Conte v. Wyeth, Inc. rejected this traditional view and held that a brand-name manufacturer’s duty to warn extends to patients whose prescriptions are filled with the generic version of the drug. Following the decision, three other courts adopted this minority position that brand-name manufacturers can be liable for injuries caused by the generic version of their drug.
On November 13, 2013, the Food and Drug Administration (FDA) proposed a new rule that would make it nearly impossible for courts to follow that minority view. The new rule would allow generic drug manufacturers to update warning labels without waiting for the brand-name manufacturer to make changes. This change in policy will have widespread consequences, both positive and negative, for consumers and manufacturers alike, including quicker safety updates for pharmaceuticals. In November 2014, the FDA announced that it was delaying the finalized rule, which was to be published in December 2014, until the fall of 2015; by November 2015, instead of publishing the finalized rule, the FDA again delayed and stated it plans on issuing the final rule by July 2016.
This Note will explore the procedure for introducing new drugs and chronicle changes in manufacturers’ postmarket duties. It will also explain the proposed rule for making changes to a drug’s warning label. In Part II, this Note will examine how different courts handled liability issues between brand-name and generic drug manufacturers, and it will focus on the recent shift in liability to brand-name manufacturers for injuries caused by generic versions of their drugs. In Part III, this Note will analyze the proposed rule’s effects on consumers, prescribing physicians, and drug manufacturers. In conclusion, this Note will provide an overall impression of the proposed rule and further suggest that the FDA not finalize this rule as it is currently proposed.
“Buzzworthy,” “BYOD” (bring your own device), and “selfie” have been added to the free Oxford Dictionaries Online after each word has worked its way into common usage or even into the respected print Oxford Dictionary. “Friend” is no longer a mere noun or synonym for acquaintance, but instead, a verb to indicate adding an individual “to a list of friends or contacts on a social networking website.” For better or worse, social media impacts how individuals communicate and interact with one another, both online and in person and “[e]veryone is doing it.” In December 2014, a decade after its founding, Facebook had 1.39 billion monthly active users, 890 million daily active users, and over 1 billion active users of Facebook mobile products. Other popular social media websites—Instagram, Twitter, and LinkedIn— indicate widespread and growing usage of the sites and social media overall.
Besides their strong economic enticement, the hosts of “Bring Your Own Booze” (BYOB) parties may have inadvertently discovered a strong legal incentive for hosting this form of party, namely to escape civil liability. Individuals under the legal drinking age often exploit these parties, and the facts presented in Juliano v. Simpson exemplify these parties’ dangerous realties and the grave consequences of underage drinking. Presented with an empty house void of any adult supervision, nineteen-year-old Jessica Simpson hosted a party at her father’s home, where she permitted her underage friends to consume alcohol that they had procured before arriving. A few short hours later, an intoxicated guest crashed into a utility pole while driving home, consequently causing his passenger, Rachel Juliano, to sustain serious injuries. Despite Simpson’s criminal behavior, the Massachusetts’s Supreme Judicial Court (SJC) declined to broaden the scope of common-law, social-host liability and affirmed that Simpson was not civilly liable for Rachel’s injuries. By refusing to recognize a duty for social hosts who provide a location for underage drinking but not the actual alcohol, the court’s opinion ultimately exposed a troubling inconsistency in the legal system where the plaintiff is not awarded civil remedies despite the defendant’s criminal liability.
Case Comment
Pinpoint IT Services, LLC v. Rivera (In re Atlas IT Export Corp.), 761 F.3d 177 (1st Cir. 2014)
After the filing of a bankruptcy petition, all pending civil actions involving the debtor are stayed pursuant to the automatic stay provision of 11 U.S.C. § 362. Creditors may seek relief by moving for the court to lift the automatic stay. An order granting stay-relief is considered a “final” order from the bankruptcy court and therefore appealable as of right pursuant to 28 U.S.C. § 158(a); similarly, a majority of the federal courts of appeals recognize denials of stay-relief as final, appealable orders. In In re Atlas IT Export Corp., the First Circuit created a circuit split when it held it lacked jurisdiction to hear the appeal from a bankruptcy court’s denial of stay-relief because the bankruptcy court’s decision did not amount to a “final order.”
Case Comment
Maryland v. King, 133 S. Ct. 1958 (2013)
The Fourth Amendment to the U.S. Constitution was enacted to protect citizens from unreasonable searches and seizures. In Maryland v. King, a case of first impression, the Supreme Court addressed the question of whether a warrantless search and seizure of an arrestee’s DNA would be afforded Fourth Amendment protection. The Court, utilizing a reasonableness balancing test, held that the government’s compelling interest of identifying criminals outweighed the arrestee’s right to privacy and found the search and seizure constitutional.