For the last fifty years, Congress has valorized the act of borrowing money as a catalyst for equality, embracing the proposition that equality can be bought with a loan. In a series of bedrock statutes aimed at democratizing access to loans and purchase money for marginalized groups, Congress has evinced a “borrowing-as-equality” policy that has largely focused on the capacity of “credit,” while acoustically separating...
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On February 14, 2019, hundreds of thousands of text messages were ensnared in a defective communications server—only to be released months later. By the time these messages reached their recipients, their worlds had changed: Heartfelt valentines arrived from loves now lost; other late-arriving messages seemed to come from the ghosts of the recently passed. It could have been worse. Text messages help to enable a wide variety of critical applications,...
Introduction Federal campaign finance law currently prohibits individuals from donating more than $35,500 per year to national political party committees. Yet, in March 2020, former New York City Mayor Michael Bloomberg gave $18 million to the DNC. How was he able to do this? The answer is simple: Mayor Bloomberg donated his $18 million not […]
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...
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,...
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’...
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...
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...
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...
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...