Vol. 120 No. 5

Bivens
Note

SPECIAL FACTORS COUNSELLING ACTION: WHY COURTS SHOULD ALLOW PEOPLE DETAINED PRETRIAL TO BRING FIFTH AMENDMENT BIVENS CLAIMS

Jessica Marder-Spiro*

As the courts continue to restrict and further restrict the availability of Bivens remedies, one category of claims has been left behind—medical-care claims brought by people detained pretrial. Because of the way the Supreme Court structured the Bivens analysis in Ziglar v. Abbasi, people incarcerated postconviction can, and do, bring claims under the Eighth Amendment for damages resulting from constitutionally defective[...]

Fourth Amendment
Note

AUTOMOBILE EVENT DATA RECORDERS, AND THE FUTURE OF THE FOURTH AMENDMENT

Daniel Harper*

To determine whether there has been a violation of the Fourth Amendment, courts must first analyze whether there has been a “search” or “seizure.” Current doctrine offers two methods of identifying a “search”: the trespassory test and the Katz test. Scholars have criticized the Katz test, which asks whether an individual has a reasonable expectation of privacy, as being difficult to apply. In Carpenter v. United States, Justice Gorsuch[...]

Constitutional Law
Article

THE PRESIDENT’S TWO BODIES

Daphna Renan*

The President has “two bodies.” One body is personal, temporary, and singular. The other is impersonal, continuous, and composite. American public law reveals different perspectives on how to manage—but cannot escape—this central paradox. Our major disagreements and confusions about presidential power track what we might think of as the fault lines between these two bodies. An array of seemingly disparate debates on topics ranging from[...]

Criminal Law
CLR Forum

A WORLD OF DISTRUST

Timothy M. Mulvaney*

In District of Columbia v. Wesby, the Supreme Court determined that a prudent officer had probable cause to arrest attendees at a festive house party for criminal trespass without a warrant. While reactions from scholars of criminal law have begun to emerge, this Piece is the first to conceive of the decision through the lens of property theory. In this regard, the Piece offers two principal claims. First, on interpretive grounds, it contends that,[...]

Criminal Justice
Essay

WHAT’S WRONG WITH POLICE UNIONS?

Benjamin Levin*

In an era of declining labor power, police unions stand as a success story for worker organizing—they exert political clout and negotiate favorable terms for their members. Yet, despite support for unionization on the political left, police unions have become public enemy number one for commentators concerned about race and police violence. Much criti­cism of police unions focuses on their obstructionism and their prioritiza­tion of members’[...]

Administrative Law
CLR Forum

WHEN CONGRESS MAKES NO POLICY CHOICE: THE CASE OF FTC DATA SECURITY ENFORCEMENT

Tyler Becker*

For twenty-five years, the Federal Trade Commission (FTC) has brought enforcement actions against companies for data breaches using its statutory authority under Section 5 of the FTC Act to police “unfair or deceptive acts or practices.” While the Commission originally brought cases under the “deceptive” prong of Section 5, more recent cases have been brought under the vague “unfairness” prong. These cases allege that a company that[...]

CCPA
Note

BEYOND REQUEST-AND-RESPOND: WHY DATA ACCESS WILL BE INSUFFICIENT TO TAME BIG TECH

David Alpert*

The California Consumer Privacy Act (CCPA) is the first-of-its-kind law in the United States providing Californians (and effectively citizens nationwide) with comprehensive protection of their online data. The CCPA provides consumers with four meaningful rights: (1) a right to access the data companies collect from and about them; (2) a right to have said data deleted; (3) a right to know which categories of third parties these companies are sharing[...]