Reward drives innovation. For this reason, Congress has enacted a system of Patents, Trademarks, and Copyrights to incentivize innovation. Such publicly ordered intellectual property regulation supports public and private interests – mandating disclosure of the innovation while legislating protection of that disclosure. Increasingly, though, the legislated incentives are proving insufficient incentive for innovation, and innovators are relying on private incentives, undermining the fundamental balance of our legal framework and maximizing the reward to innovators at the cost of the public’s interest. Enforcement of contracts that supplant legislation rather than supplement it contravenes public policy and vitiates the public’s interest. It is time to reform public ordering to protect the public’s interest while providing the reward demanded for innovation.
Mobile app users e-sign terms of service (ToS) and privacy policy agreements (PPA) on a daily basis, oftentimes without reviewing them. This practice is problematic because ToS and PPA include considerable “ethical risks,” that are, questionable elements that they would not reasonably expect to find in these agreements. This Article introduces a novel conceptual framework and comprehensive typology for analyzing ethical risks in ToS and PPA of mobile apps. The proposed typology is the first to integrate ethical risks stemming from both ToS and PPA into a single coherent framework. Furthermore, the typology addresses the identified risks in terms of both the rights violated and the concrete business and legal practices that create them. Based on this thorough analysis, the Article argues that the legal mechanisms of ToS and PPA do not achieve their purposes. ToS and PPA often legalize ethical risks by obtaining users’ consent to terms that users may not fully understand. As such, rather than protecting users, ToS and PPA frequently perpetuate users’ vulnerabilities and subject them to rights-infringing measures. * Research fellow at the BIU Innovation Lab for Law, Data-Science, and Digital Ethics at Bar-Ilan University Faculty of Law. For helpful comments and suggestions, I thank Nofit Amir, Ittai Bar-Siman-Tov, Ariel Bendor, Ittai Cohen, Yuval Feldman, Shalhevet Hetli, Hadas Raichelson, Ayelet Sela, Sharon Shenhav, Bart van der Sloot, Yuval Zilber, and the participants of the International Conference on Law, Artificial Intelligence and Data Science: Challenges and Opportunities, at Bar-Ilan University, and of the International Machine Lawyering’s 2021 Conference, “Human Sovereignty and Machine Efficiency in the Law” at Chuck Law, the Chinese University of Hong Kong. This study was awarded a Best Paper Prize at the Machine Lawyering’s 2021 Conference and research grants from the Ministry of Science and Technology (Grant No. 3-15723), the Israel Council for Higher Education, and the Data Science Institute at Bar-Ilan University. (483) Mizrahi: Risky Fine Print: A Novel Typology of Ethical Risks in Mobile App Published by Villanova University Charles Widger School of Law Digital Repository, 2021 484 VILLANOVA LAW REVIEW [Vol. 66: p. 483 In addition, the Article examines the scope of protection against the identified ethical risks that is awarded by landmark laws in the area of digital privacy and consumer protection: The General Data Protection Regulation (GDPR), the Consumer Rights Directive of the European Union (EU), the California Consumer Privacy Act (CCPA), and the California Privacy Rights Act (CPRA). The Article concludes with a discussion of its practical implications, which can have far-reaching consequences for privacy protection and consumer protection regulation. These implications include guidance for developing new regulatory and decision-support tools, improving consumer understanding of ethical risks, and assisting mobile app providers in drafting ethical user agreements. Villanova Law Review, Vol. 66, Iss. 3 [2021], Art. 1 https://digitalcommons.law.villanova.edu/vlr/vol66/iss3/1 2021] RISKY FINE PRINT 485
Using a judicial tool known as the “rational basis test,” federal courts uphold a federal or state statute as constitutional so long as it rationally relates to a legitimate government interest. In this Article, I contribute a new theory to a growing body of scholarship questioning the validity of the rational-basis test. I argue that the test violates the structural separation of powers and the Supremacy Clause of the U.S. Constitution. Article III of the Constitution vests federal courts — and no other branch — with the “judicial power.” This power entails applying law to decide particular disputes; interpreting the law in order to apply it; and, when faced with multiple conflicting sources of law, applying higher-order law and rendering lower-order law void or unenforceable. On that last point, the Supremacy Clause instructs that the Constitution prevails over contrary federal and state statutes. I argue that when employing the rational-basis test in a case challenging a statute, courts abdicate part of their judicial power and duty. Instead of fully exercising the judicial power to ascertain the best, fairest, and correct interpretation of the constitutional provision at issue, they merely set a zone of deference, within which all rational interpretations reside. The abdicated judicial power is effectively transferred to Congress or the state legislature (as the case may be), which then exercises the remnant judicial power — much like how Chevron deference results in transfer of judicial power to the executive branch. When used to review a federal statute, this framework violates the separation of powers. And when used to review any statute, it subverts the Supremacy Clause’s established legal hierarchy by elevating the status of lower-level statutes and illegitimately demoting the Constitution.
Professor Erica Goldberg proposes incorporating a common law baseline to our current understanding of the First Amendment. Professor Goldberg argues courts should treat the common law as it existed at the time of the First and Fourteenth Amendment's ratification and use it to decide which free speech harms can be regulated.
Reward drives innovation. For this reason, Congress has enacted a system of patents, trademarks, and copyrights to incentivize innovation. Such publicly ordered intellectual property regulation supports public and private interests—mandating disclosure of the innovation while legis- lating protection of that disclosure. Increasingly, though, the legislated incentives are proving insufficient for innovation, and innovators are rely- ing on private incentives, undermining the fundamental balance of our legal framework and maximizing the reward to innovators at the cost of the public’s interest. Enforcement of contracts that supplant legislation rather than supplement it contravenes public policy and vitiates the pub- lic’s interest. It is time to reform public ordering to protect the public’s interest while providing sufficient reward to incentivize innovation.
This article discusses the ways that sexism and biases manifests themselves in academic settings, focusing on the legal profession. Biological motives behind such behaviors, namely, those between women, are a key focus. Additionally, psychological perspectives are offered to further understanding of same-sex sexism.
Joseph Thomas argues section 280E of the Internal Revenue Code imposes a harsh tax burden that targets marijuana companies specifically. Joseph critiques recent Tax Court holdings and argues Congress should amend the statute and exclude marijuana companies under state law.
Lindsey Cook explores the difficulties sex-plus-age plaintiffs face when bringing disparate treatment claims under Title VII. Lindsey weighs the pros and cons of courts requiring evidence of an opposite-sex comparator and demonstrates the effects opposite-sex comparator evidence has on Title VII claims.
Amy Sparrow Phelps argues that expanding force majeure clauses in response to global crises such as the COVID-19 pandemic is an inefficient application of the doctrine. Amy instead encourages practitioners to recognize these inefficiencies and to draft contracts in a manner that leaves more options available for when unexpected events occur.
The Supreme Court recently held in the Comcast case that “but-for” causation is required to be shown by claimants under the 1866 Civil Rights Act’s § 1981 and also announced that this standard is the default position presumed to govern all other federal civil rights statutes. This Article deals with the question of how Comcast’s but-for-presumption applies to fair housing cases. The answer is complicated, because these cases are often brought under multiple laws. For example, a Black applicant who is rejected by an apartment complex ostensibly for having inadequate income, but who believes this decision was racially motivated because the complex accepted a white “tester” with similar credentials, may sue under the Fair Housing Act (“FHA”), the 1866 Civil Rights Act’s § 1982, the 14th Amendment’s Equal Protection Clause (if the complex is public housing or otherwise involves state action), and the local state and/or municipal fair housing law. If the evidence shows the complex rejected the Black applicant both because of an unlawful motive (race) and a lawful one (economics), who should win? The answer depends on what causation standard applies in these laws. The causation issue seems easy enough to resolve for claims under the 1866 Act’s § 1982, the companion provision of the one involved in Comcast, which will now also be governed by the but-for standard. But in Equal Protection claims, Comcast’s statutory presumption does not apply, and such claims have for decades been governed by the more lenient “motivating-factor” standard. And claims under state and local fair housing laws will vary from place to place, because they are also unaffected by the Comcast presumption concerning federal statutes and many of them provide for more lenient causation standards. The most difficult issue for housing discrimination cases will involve claims under the FHA, whose “because of” prohibitions must now be taken to suggest, based on Comcast, a but-for standard. But a strong counter-argument exists. For decades, the lower courts have rejected but-for causation in FHA cases in favor of a more lenient standard. Moreover, this view was well established by 1988 when Congress amended the FHA without changing the crucial “because of” language, a fact that the Supreme Court has held may indicate Congress’s endorsement of prior established standards. And a further complication will arise in the growing number of FHA suits that include a retaliation claim under the statute’s § 3617, which may, as in Title VII employment discrimination cases, have a different causation standard than that of the FHA’s other substantive provisions. This Article concludes that, in multi-claim fair housing cases, courts will have to analyze the causation issue for each law separately, likely producing different results. As for the FHA, most circuits will be bound by their precedents establishing a less-than-but-for standard, at least until an en banc decision makes a change. A circuit split seems likely, requiring eventual Supreme Court review of the FHA issue, and Congress, as the final authority on statutory matters, is ultimately responsible for resolving it.
This Note analyzes the Third Circuit's decision in B.L. ex rel Levy v. Mahanoy Area School District furthering First Amendment protections for student's off-campus social media speech. The Court declined to extend the Tinker exception to such speech, which would evaluate whether this cyberspeech caused a substantial disruption. This Note argues that in the face of a silent Supreme Court, precedent and policy support the Fourth Circuit's sufficient nexus test. This test is a more appropriate standard because it is consistent with Tinker and properly addresses off-campus electronic speech cases.
This Notes analyzes the Second Circuit's decision in United States v. Blaszczak where the Court declined to extend Title 15's personal benefit requirement for tipper-tippee insider trading to such actions brought under Section 1348. This Note argues that such a decision is in conflict with the statute's text and legislative history. Further, this Note analyzes the disjointed background of insider trading that set the stage for Blaszczak and considers the potential ramifications of this decision on insider trading law.
This paper explores the structural barriers to equality for skills-focused faculty in the legal academy, including social and cultural, external organizational, and institutional barriers. It posits that these barriers perpetuate inequality in the academy as much as they do in the workplace generally, and the data indicate that the percentage of women teaching skills-focused courses with less pay and security of position is increasing. The article concludes by summarizing the tireless efforts of two national organizations, the Association of Legal Writing Directors, and the Legal Writing Institute, to break down these barriers and improve the respect for and status of skills-focused faculty in legal education.
The use of the student evaluation of teaching (SET) for high stakes faculty employment decisions amounts to a lapse in leadership. A scholarly consensus has emerged that using SETs as the primary measure of teaching effectiveness in faculty review processes can systematically disadvantage faculty from marginalized groups. The growing body of evidence shows that women and minorities get lower ratings of their teaching than white men. Using biased evaluations allows colleges and universities to discriminate against faculty whose identities deviate from white male heteronormativity.Despite the knowledge that empirical research demonstrates these instruments are biased, the academy has accepted them as credible. Bias in student evaluations can lead an institution to determine that a faculty member who differs from the straight white male stereotype is an inadequate teacher. Faculty with lower student ratings are penalized in the hiring, retention, compensation, and promotion processes.This article summarizes empirical research demonstrating that student evaluations are biased against female faculty and faculty of color; describes the impact on student learning; details the influence on institutional culture of using student evaluations for assessing teaching quality for performance evaluations, compensation, promotion, and retention; and suggests recommendations for evaluating teaching effectiveness in fair and responsible ways. Law schools should lead the change in this discriminatory higher education practice because they are institutions dedicated to social justice and to training leaders who will drive social change in the legal system, government, business, media, and philanthropy.
This article focuses on law librarianship as a profession that has a lower perceived status in the legal field, as well as lower salaries. These professionals are unable to participate in meaningful governance of the profession. The status disparity of law librarians is contextualized by the role of gender bias in the legal academy.
As educators strive for gender equity within the traditional binary, pedagogical efforts within the classroom necessarily must include students across the gender spectrum. The landmark Supreme Court decision on three related cases, the "Title VII Trifecta" (Trifecta),' is not a social upheaval but rather a recognition that societal constructions on sex and gender have evolved. In particular, Generation Z students are overwhelmingly in support of extending legal protections to keep pace with this evolution. It is incumbent upon legal educators, especially in recognition of the potential limits of the Trifecta holding, to acknowledge the rapidly changing legal landscape when it comes to individuals beyond the binary. This Article is intended to be an introduction to the consideration of complex sex and gender dynamics in the classroom with concrete strategies to increase feelings of equity and inclusion.
This article focuses on the recent phenomenon of increased hiring rates of female law school deans. This is analyzed in the context of the legal community, wherein unequal treatment of women is still rampant. The article also critiques the lagging rates of equality among women of color. The article contextualizes these trends by providing statistics and informed analytics.
This article discusses the ABA's complicity in gender inequality through disparate treatment of clinic and legal writing faculties compared with tenure-track professors. The author focuses on Standard 405(b) from the ABA Council on Legal Education and Admission to the Bar for uplift of these underrepresented professionals.
