Although antitrust scrutiny of “big tech” companies has increased drastically over the past decade, much of the national debate has concerned issues of monopolization and the Sherman Act—the dominant federal antitrust statute. But with rapid developments in artificial intelligence and machine learning, algorithmic price fixing has become an increasingly pressing threat that the Sherman Act is ill-equipped to tackle. Under the current framework,...
Note
Bostock v. Clayton County has been widely recognized as momentous for providing LGBTQ Americans with protection against workplace discrimination, helping to safeguard their economic wellbeing and dignity. But it also has the potential to impact sex discrimination jurisprudence even more broadly. This Note argues that Bostock fundamentally redefined what it means to discriminate because of sex, expanding the definition to include...
In Oregon v. Kennedy, the Supreme Court held that the Double Jeopardy Clause does not bar the reprosecution of a defendant in cases in which prosecutorial misconduct causes the defendant to move for a mistrial. The Court established only one exception to this rule: If the prosecutor’s misconduct was intended to provoke the defendant into moving for a mistrial, the Double Jeopardy Clause bars the retrial of the defendant. The Kennedy...
In Graham v. Connor, the Supreme Court held that a Fourth Amendment reasonableness standard governed the analysis of any allegation that a law enforcement officer used excessive force during an arrest or investigatory stop. In particular, courts were to evaluate the reasonableness of the need to use force from the perspective of a hypothetical reasonable police officer at the scene. While this test seems straightforward, the Supreme Court...
In 2005, the Immigration and Customs Enforcement (ICE) agency enacted a policy sanctioning its civil ICE agents to use strategic deception, known as “ruses,” to facilitate community immigration enforcement operations. This policy provided agents a means to overcome the limitation that civil immigration arrest warrants are administrative as opposed to judicial in nature, which effectively precluded agents from entering a target’s home without...
After President Trump declared a national emergency and diverted funds to build a wall on the southern border, several litigants challenged his action as ultra vires, or beyond his constitutional and statutory authority. The litigants asserted abstract equitable rights of action, implied in federal courts’ equitable powers. The Supreme Court has left unclear, however, whether or not such an implied equitable action for statutory...
In the digital context, companies often use “dishonest design”—commonly known as “dark patterns”—to trick or push consumers into doing things they wouldn’t necessarily have done otherwise. Existing scholarship has focused on developing a taxonomy and definitions for different categories of dark patterns, conducting empirical research to better understand the effectiveness of dark patterns, and broadly surveying...
Class actions for monetary relief have long been the subject of intense legal and political debate. The stakes are now higher than ever. Contractual agreements requiring arbitration are proliferating, limiting the availability of class actions as a vehicle for collective redress. In Congress, legislative proposals related to class actions are mired in partisan division. Democrats would roll back mandatory arbitration agreements while...
Buildings in the United States are responsible for nine percent of the world’s greenhouse gas emissions, and improvement of building energy efficiency through strong building energy codes can help achieve significant emissions reductions and cost savings. But building energy code regulation across the country is inconsistent: Some states have statewide codes with ambitious clean energy targets, while others have no statewide codes at all....
The COVID-19 pandemic has laid bare the severe public health danger that institutional and congregate care settings pose to people with disabilities, older adults, and the care professionals who work in those settings. While the populations residing in congregate care settings are naturally more susceptible to the virus, the COVID-19 crisis in these settings could have been far more limited if there had been broader access to home and community-based...