Article
Supreme Court rhetoric, scholarly discussion, blackletter law, and ethical rules have perpetuated a myth that individual rights protect the autonomy of defendants within the criminal legal system. To expose this myth, I examine six rights that the Court has enshrined as essential decision points for criminal defendants due to the rights’ purported expressive and consequential functions: (1) the right to self-representation; (2) the right to plead guilty; (3) the right to waive a jury; (4) the right to testify; (5) the right to waive appeals; and (6) the right to maintain innocence at a capital trial. I conclude that each of these rights fails to protect defendant autonomy.
by Kathryn E. Miller
Article
“Welcome to the best restaurant in town” was the byline of the advertisement in the local newspaper. A restaurant named Panera was to commence business in Tippasandra, Bangalore, India, with a menu that included chat, biryani, and kebabs. Panera Bangalore had no relationship with the American chain with the same name. At the time the advertisement appeared, Panera Inc., the American entity, had no interest in India, and hence, there was no registration for the name in India. The Indian entity registered the trademark (mark) by applying for registration with the Indian Patent & Trademarks Office (IPTO) for a large array of goods, including coffee; chai (a local Indian drink made with milk and black tea); flavored bakery products; frozen products, such as ice creams and flavored ice; insignias; t-shirts; caps; toys; and more.
by Srividhya Ragavan
Article
Proposals for data ownership are widely misunderstood, aim at the wrong
goal, and would be self-defeating if implemented. This Article, first, shows that data
ownership proposals do not argue for the bundle of ownership rights that exists over
property at common law. Instead, these proposals focus on transferring rights over
personal information solely through consent.
Second, this Article shows the flaws of a property approach to personal
information. Such an approach magnifies well-known problems of consent in
privacy law: asymmetric information, asymmetric bargaining power, and leaving
out inferred data. It also creates a fatal problem: moral hazard where corporations
lack incentives to mitigate privacy harm. The moral hazard problem makes data
ownership self-defeating. Recognizing these deficiencies entails abandoning the idea
that property over personal data can achieve meaningful protection.
by Ignacio Cofone
Article
At the start of the Birdville Independent School District school
board meeting in Haltom City, Texas, a young public school student
prays for the proceedings, stating, “All of us students are lucky to be a
part of this district, and I ask God to bless you.” While the student
speaks into the microphone that is used by constituents and set at his
level in front of the podium, the school board members post a
disclaimer on the screen behind them and in front of the gathered
assembly of meeting attendees that states: “The content of the speaker’s
message is the private expression of the individual student.” This
student is part of a longstanding tradition of the district’s merit-based
selection of elementary and middle school students to deliver an
invocation prior to the start of school board meetings—an invocation
practice that was upheld as constitutional by the Fifth Circuit in
American Humanist Ass’n v. McCarty.
by Amanda Harmon Cooley
Article
The Internet today is full of fake people and fake information. Trust in both
technology and institutions is in a downward spiral. This Article offers a novel
comprehensive framework for calibrating a legal response to technology “fakery”
through the lens of information security. Introducing the problems of Internet
“MIST”—manipulation, impersonation, sequestering, and toxicity—it argues that
these MIST challenges threaten the future viability of the Internet through two
morphed dynamics destructive to trust. First, the arrival of the Internet-enabled
“long con” has combined traditional con artistry with enhanced technological
capability for data collection. Second, the risk of a new “PSYOP industrial complex”
now looms. This chimera fuses techniques and employees from military
psychological operations with marketing technologies of message hyperpersonalization
in order to target civilian audiences for behavioral modification. To
address these two problematic dynamics through law, the Article constructs a
broader theory of Internet untrustworthiness and fakery regulation.
by Andrea M. Matwyshyn* & Miranda Mowbray*
Student Note
Ryan Coleman passed away suddenly and tragically in his sleep at
the age of twenty-four on Christmas Day. His initial death certificate
stated that the cause of death was “pending further study.” The autopsy
report ultimately came back inconclusive—Ryan had died of unknown
causes. Left with questions unanswered, Ryan’s parents, Gregory and
Adrienne, reached out to Apple in hopes of retrieving data from Ryan’s
iPhone. After Apple turned them away, they petitioned the Surrogate’s
Court of New York, Westchester County, seeking a court order granting
them access to Ryan’s digital assets as personal representatives of his
estate.
by Isabelle N. Sehati
Student Note
In the wake of the murder of George Floyd, citizens across America launched mass protests that were mirrored around the world. Civil society sought to bring attention to the systematic killing of Black and Brown individuals at the hands of police officers and to the lack of accountability that these tragic events have been met by. Angry, frustrated, and feeling defeated, protestors took to the streets to chant “Black Lives Matter,” “no justice, no peace,” and “defund the police.”
by Yomidalys Güichardo Morel
Student Note
Can municipalities use the zoning power to prevent racial or
religious minorities from moving in? Not expressly. In 1917, almost a
decade before the dawn of modern “Euclidean” zoning—and several
decades before Brown v. Board of Education abolished “separate but
equal”—the Supreme Court decided that racially segregated zoning,
then common, was unconstitutional. But municipalities have other
ways to exclude minorities via the zoning power.
by Noah Kane
