This Article outlines a novel First Amendment compelled speech claim against a growing body of abortion restrictions, including fetal demise and burial laws, premised on a state interest in “expressing respect for potential life.” It weaves Fourteenth Amendment limitations together with developments set out last year in NIFLA v. Becerra to demonstrate that the Court’s expanding First Amendment...
Decarbonization in Democracy
Abstract Conventional wisdom holds that democracy is structurally ill equipped to confront climate change. As the story goes, because each of us tends to dismiss consequences that befall people in other places and in future times, the people cannot be trusted to craft adequate decarbonization policies designed to reduce present-day, domestic carbon emissions. Accordingly, U.S. climate change...
Derivable Works
From sequels and spin-offs to physical merchandise, copyright and trademark law together give a creative work’s owner exclusive control over a range of derivative products. This Article argues that, under the right conditions, that control can tilt artistic investment away from standalone works and toward the ones that are most likely to generate future derivatives. It explores this phenomenon...
Big Data Prosecution and Brady
As helpful as new forms of centralized data collection might be for investigators, there remains a critical open issue: the systems were not designed to identify the exculpatory and impeaching material prosecutors are required to disclose under Brady v. Maryland. This Article is the first to examine the design flaw at the core of the intelligence-driven prosecution model – a flaw that creates a...
#MeToo's Unseen Frontier: Law Enforcement Sexual Misconduct and the Fourth Amendment Response
Abstract If a police officer pulls a person over for running a stop sign, the Fourth Amendment clearly applies. But if he sexually assaults a person in her home, in a noninvestigative setting, it generally does not. A substantive due process test—whether the officer’s conduct “shocks the conscience”—controls instead. This means more constitutional protection for officers and less for victims...
Love in the Time of Cholera
Abstract A famous novel by Gabriel García Márquez describes a love story among three actors that took place in a city in Colombia during the time of cholera. The interpersonal dynamics that unfold in this work by a Nobel Prize-winning writer offer insight into events taking place today. We show how the urge to romanticize emotions during a time of great social stress, as well as the desire to...
Jump v. Los Angeles: Removing Platforms Further from Democratic Control?
Abstract In March 2020, Jump, Uber’s e-scooter subsidiary, sued the Los Angeles Department of Transportation over a rule that requires the company to share real-time location data about its e-scooters with the city government. Jump argues that the rule operates in practice as a warrantless administrative search. It also argues that all the data it collects from its users are part of its...
How the Law Fails Tenants (And not Just During a Pandemic)
Abstract In the wake of the COVID-19 pandemic, all levels of government are considering how to protect public health by keeping people in their homes, even if they can no longer afford their monthly mortgage or rent payments. The protections that have emerged thus far have been far more protective of homeowners than renters. This essay exposes how the disparity in legal protections for these two...