- 50th Anniversary
- Online Edition
- Print Edition
- Donahue Lecture Series
The interpretation and application of the Alien Tort Statute (ATS) has challenged federal courts for the last two decades in the twentieth century. The ATS, a single sentence within the Judiciary Act of 1789, provides United States federal courts with original jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Following a lengthy dormant period, federal courts resurrected the ATS in the 1980s to grant federal jurisdiction over international human rights claims where both the plaintiff and defendant are of foreign origin. In the late twentieth and early twenty-first centuries, however, courts have struggled to find a consistent approach to adjudicating claims brought against multinational corporate defendants. As ATS jurisprudence has evolved, courts have largely narrowed its application, reducing foreign plaintiffs’ abilities to have their claims adjudicated in American federal courts.
This Note will trace the history of the modern use of the ATS with a focus towards the development of its use against multinational corporations. It will discuss the difficulty courts have faced in limiting the ATS to specific torts, as well as the difficulties courts have faced in applying the ATS in response to the restrictive territorial test outlined in Kiobel. This Note will also argue that a broad and inclusive “touch-and-concern” test to displace the presumption against extraterritoriality creates more problems than it solves. Instead, this Note suggests that such boundaries are best determined by new legislation aimed specifically at the modern day, multinational corporations.
Congress continually adjusts copyright law to correspond with the advent of new technologies, such as the World Wide Web. Through copyright law, Congress aims to incentivize authors to create and disseminate new works without stifling their creativity by providing copyright holders with too much protection. The United States Constitution states copyright protection’s goal: “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Determining the scope of copyright protection, however, is difficult; some authors want perpetual monopolies in their works while others are willing to allow free access to their works after recouping their initial investment.
Because current protections for digital image copyright owners leave creators and content providers vulnerable to mass infringement, legislative action is required to prevent further copyright transgressions and to ensure creative output thrives. Furthermore, copyright owners like Getty may be able to better protect their online content if digital images became copyright protected under Title 17 of the United States Code. This Note argues that the historical practice of safeguarding authors and publishers, coupled with compelling policy concerns, provide ample justification for extending sui generis copyright protection to digital images.
In a widely fractured decision, the Supreme Court held that a defendant’s constitutional right to confrontation was not violated when an expert provided testimony concerning a DNA profile linking the defendant to his accused crime. In Williams v. Illinois, the Court articulated three different reasons as to why the expert testimony, in the absence of testimony from the primary analyst, did not violate the Confrontation Clause. The plurality decision in Williams produced significant inconsistencies among courts analyzing the issue of expert testimony and defendants’ right to confront their accusers.
This Note will begin by explaining defendants’ right to confrontation and discussing the evolution of the Confrontation Clause through Crawford, Williams, and other seminal cases. The Note will then discuss the lack of uniformity in Confrontation Clause analyses across the country due to the fractured Williams decision. Next, it will examine the unreliability of crime labs and forensic evidence by illustrating crime lab scandals occurring in multiple states. The analysis argues that states should reject the Williams notion of inherent DNA testing reliability, and provide defendants with better protection by requiring the primary analyst to testify to satisfy the Confrontation Clause.
Congress enacted the Lanham Act for two primary reasons: ensuring public confidence that a product is genuine, and preventing misappropriation of that product’s identifiers by “pirates and cheats.”1 Section 2(a) of the Lanham Act prevents federal registration of scandalous, immoral, or disparaging trademarks.2 In In re Tam,3 the Federal Circuit reviewed en banc whether the First Amendment allows the denial of a trademark application that the Trademark Examiner and Trademark Trial and Appeals Board (TTAB) found disparaging.4 Vacating the TTAB’s holding, the Federal Circuit held that the “disparaging” provision of section 2(a) of the Lanham Act violates the First Amendment right to free speech because the government has no legitimate interest in denying registration under the provision.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd- Frank Act) reformed federal financial regulation in response to the Great Recession. The Dodd-Frank Act includes incentives and protections for whistleblowers who report violations of federal securities laws. In Berman v. Neo@Ogilvy LLC, the Court of Appeals for the Second Circuit considered whether the anti-retaliation provisions of the Dodd-Frank Act protect a whistleblower who does not report violations to the Securities and Exchange Commission (SEC). The court held that the statute is sufficiently ambiguous so as to warrant deference under Chevron U.S.A., Inc. v. National Resource Defense Council, Inc. to SEC regulations, which extend protection to internal whistleblowers who merely report violations within their organization. The court’s decision split from the Fifth Circuit—the only other circuit court of appeals that has addressed this issue and deemed that the statute unambiguously required whistleblowers to report to the SEC.
In the United States, “equal justice under law” is at the very forefront of our American justice system. “Equal justice” is meant to guarantee equal access to the justice system. “Equal access to the judicial process is the sin qua non of a just society.” Many Americans, however, do not have any access to the justice system, never mind that of equal access. “Equal justice” has not reached the nation’s indigent, or even many of our moderate-income citizens.
When does the Constitution require procedural safeguards for infringements on First Amendment rights? Surprisingly, this general question has never been answered. The absence of procedural protections for First Amendment rights can yield enormous and substantive implications. One particular investigative tool, the National Security Letter (NSL), is illustrative. Each year, the FBI uses tens of thousands of NSLs to obtain customer “toll billing” information, or transactional records—such as records related to telephone calls, emails, text messages, online forums, tweets, or Facebook messages—from service providers. FBI nondisclosure orders, which usually accompany NSLs, prevent the recipient from speaking about the requests. Since 2001, there have been only a handful of known challenges to NSLs.
This Article argues that the near total absence of procedural safeguards for NSL issuance violates the First Amendment rights of subscribers whose records the FBI obtains.
The United States Supreme Court has long recognized the importance of certain types of speech, and as a result, any law regulating speech of serious societal value must survive strict scrutiny—an extremely rigorous level of constitutional review. At the same time, the Constitution affords other types of speech little to no protection. The Supreme Court’s jurisprudence regarding laws regulating socially important speech is separated into two categories, created to separate the way the law affects speech. If the reviewing court holds the law is content based, meaning the law regulates speech based on the message conveyed, then the law is subject to strict scrutiny. Alternatively, if the law is content neutral, meaning its regulation is not based on the expression itself, then the law is subject to intermediate scrutiny, a lower level of judicial review.
Part II.A of this Note will outline the basic principles of the content- neutrality doctrine and the general implications of a positive determination. Parts II.B and II.C will discuss specific aspects of the Supreme Court’s jurisprudence, namely the secondary effects doctrine and the distinction between speech on public and private property. Part II.D will describe the role of governmental motive in courts’ determinations and the conflicting approaches within court cases. Part II.E will detail the current federal circuit split and the Supreme Court’s responsibility to formulate a more effective rule or test. Finally, Part III will argue that the determination of governmental motive should not be a necessary component of the content-neutrality determination, and that the absolute approach is preferable, particularly when evaluating laws that regulate speech on private property.
In an increasingly digital society, individuals store information online and occupy a social media presence more than ever. Whether through Facebook or other social networking platforms, email accounts, online banking, music providers, or other digital outlets, society occupies and possesses vast digital property. Many types of digital property are replacing—or have already replaced—outdated types of tangible personal property. Further, unlike our friends and family, whose lives must, unfortunately, come to a halt, digital property can exist into perpetuity. Because laws addressing digital property implications upon death cannot keep pace with society’s rapid technological revolution, digital estate law across the United States remains complicated and inconsistent.
This Note argues that federal and state law can coexist in this arena, as recent state law is complementary, not incompatible, with federal laws governing digital communications. Further, this Note emphasizes the unique privacy concerns relevant to digital asset management, arguing sweeping state legislation that categorically divulges private account contents neglects the important privacy interests associated with such digital property. Additionally, this Note highlights the importance of deferring to the decedent account holder’s intent when determining whether fiduciary access or control over account content is appropriate after death. This Note discusses areas of strength in current model legislation, namely the Privacy Expectation Afterlife and Choices Act (PEAC), which provides a useful example for states seeking to adopt comprehensive legislation recognizing the intimate and private nature of online property, even after death. This Note concludes suggesting a court ruling is necessary to clarify the law concerning postmortem digital assets.
The adversarial system requires full discovery as an essential element of a fair and accurate litigation process. The parties to litigation must be able to review the entire universe of relevant, and potentially relevant, evidence. Not surprisingly, spoliation—the destruction of evidence with a culpable state of mind—is an anathema to the most fundamental principles governing litigation procedure and in turn may warrant harsh sanctions.
This Article examines the continuing effort by the drafters of the Federal Rules and the courts to determine how to regulate document destruction in the digital age. Part I of this Article reviews the basic problem of preserving digitized information. Part II considers how the courts traditionally treated breaches of the duty to preserve documents. In Part III, this Article examines how the Federal Rules were first amended to modify the method for imposing sanctions regarding the spoliation of digitized information. Part IV discusses cases in which courts struggled to implement the 2006 amendments to the rules against spoliation consistently. Finally, Part V reviews recently proposed modifications to the 2006 amendments, anticipating some of the problems that may arise with these proposed changes. This Article concludes that the difficulty courts and drafters face in defining culpable destruction is an inevitable consequence of the constantly shifting technological circumstances surrounding the creation and storage of information. Although it may be unsatisfying to live with significant uncertainty about the rules governing spoliation, it may be a necessity, and developing a comprehensive, consistent body of case law may be more a matter of measured evolution than that of brilliant insight or invention.