Category Archive: Notes

Whose Bathroom Is It, Anyway?: The Legal Status of Transgender Bathroom Access Under Federal Employment Law – Note by Allison Bader

In many ways, Michael C. Hughes is an average American family man. He is a middle-aged father of four from Rochester, Minnesota. He has been married to his wife for twelve years. He has a broad, muscular frame and is partial to cowboy hats and wide belt buckles. But Hughes is unlike the average American family man in one fundamental way: he was born biologically female. Hughes is one of the more than 1.4 million transgender adults in the United States, a small but increasingly visible group of people who are currently facing a unique legal battle to use restrooms and single-sex facilities that align with their gender identity.

Hughes garnered publicity with a viral photo taken in a public restroom, in protest of “bathroom bills”—laws that require Hughes to use women’s restrooms and facilities, despite his gender identity. “Bathroom bill” is the common name for legislation that prohibits individuals from using bathrooms (or other private, single-sex facilities like locker rooms) that do not match their biological sex or sex markers on their identification documents, depending on the bill. Posing in front of the bathroom mirror in a women’s restroom, as female patrons look on questioningly, Hughes “presents” as a male—making him appear out of place in the restroom that nonetheless matches his biological sex. Hughes’ photo and its accompanying hashtag, “#WeJustNeedtoPee,” went viral in 2016, reflecting Americans’ rapt attention on transgender issues.

“Moore” Than Just a Number: Why IQ Cutoffs Are an Unconstitutional Measure for Determining Intellectual Disability – Note by Courtney Johnson

Bobby James Moore was twenty years old when he “fatally shot a store clerk” while robbing a grocery store in April 1980. On paper, this is a tragic felony murder, but behind the scenes lies a different story. Bobby was not a typical twenty-year-old; he did not understand “the days of the week, the months of the year, [or] the seasons.” Bobby could barely tell time, and he could not understand standard measurements or that subtraction is the opposite of addition. Bobby suffered an “abuse-filled childhood.” Bobby dropped out of high school due to “his limited ability to read and write,” and he lived on the streets after being kicked out of his home for being “stupid.” Bobby is intellectually disabled, and despite the evidence put forth demonstrating his disability, he was sentenced to death pursuant to a set of factors used by a Texas court; these factors are largely based on stereotypes and caricatures from literature. As the United States Supreme Court decided in 2017, this was a gross violation of the Eighth Amendment’s protection against cruel and unusual punishment to rely on “wholly nonclinical” factors rather than the “medical community’s diagnostic framework.”

Eyewitness Identifications: Recommendations to the Third Circuit – Note by Brady Witbeck

Just before two o’clock in the afternoon on October 22, 1991, two high school students, Chedell Williams and Zahra Howard, ascended the steps of the Fern Rock train station in North Philadelphia, planning to take a train back to their homes. Seemingly out of nowhere, two men appeared, blocked the girls’ way up to the station, and demanded Chedell’s earrings. Terrified, the girls bolted in opposite directions. The two men followed Chedell. They soon caught her and tore out her earrings. Then “[o]ne of the men grabbed her, held a silver handgun to her neck, and shot her.” The perpetrators fled. Chedell was pronounced dead within the hour.

Police soon focused their investigation on James Dennis, who lived relatively close to the train station in the Abbotsford Homes projects. Detectives would later explain that they heard rumors that Dennis was involved in the shooting, though they were at that time “unable to identify the source of the rumors.” The detectives obtained preliminary descriptions of the perpetrators from three eyewitnesses. These initial descriptions did not align well with Dennis’s actual appearance. Nonetheless, a few eyewitnesses identified Dennis during subsequent photo lineups, live lineups, and the trial. In presenting the government’s case, the prosecution relied heavily on these eyewitness identifications. Dennis was found guilty of “first-degree murder, robbery, carrying a firearm without a license, criminal conspiracy, and possession of an instrument of a crime.” He was sentenced to death.

Should Statistical Sampling Be Used to Prove Liability Under the False Claims Act in Healthcare Fraud? – Note by Milene Vega

In recent years the False Claims Act (“FCA”) has become the Department of Justice’s (“DOJ”) favorite tool to combat large-scale fraud—particularly healthcare fraud. In fact, from 2009 to 2016 alone, the DOJ recovered over $19.3 billion in health care fraud—“more than half the health care fraud dollars recovered since the 1986 amendments to the False Claims Act.” In general, the statute prohibits (1) knowingly submitting false claims to the federal government or causing another to submit a false claim, (2) knowingly creating a false record or statement to get a false claim paid by the federal government, and (3) retaining funds improperly received from the federal government.

Although the FCA originated during the Civil War, Congress has periodically strengthened the FCA through amendments, which have converted it into a “modern weapon” that the DOJ and whistleblowers use to punish providers who knowingly submit false claims or false records or retain funds improperly received from the government. The amendments have permitted larger damages, which in turn have incentivized whistleblowers and the DOJ to use whatever means available to prove liability in as many false claims as possible. During the last five years in particular, that has meant turning away from proving liability for each individual claim and instead using statistical sampling as proof of liability for a much larger number of claims.

Statutory Millennialism: Establishment and Free Exercise Concerns Arising from the Health Care Sharing Ministry Exemption’s 1999 Cutoff Date – Note by James R. Salzmann

For nearly a decade, health care reform has been at the center of American politics. The development, enactment, and reform of the Patient Protection and Affordable Care Act (PPACA)-“Obamacare,” in the parlance of both opposition and advocates-dominated the election cycles of 2010, 2012, 2014, and 2016, and continued policy changes and market instabilities are all but certain to remain in the spotlight through 2018 and 2020. The endurance of this debate should come as no surprise: national attempts to expand access to affordable medical services have a long history, beginning not with Barack Obama, Mitt Romney, Bill Clinton, or even Lyndon Johnson, but with Teddy Roosevelt and the Progressive Party in 1912. Along the way, while employer-provided insurance came to form the cornerstone of American health care coverage, a wide range of proposals sought to extend benefits to the uninsured, including efforts to create tax subsidies, to introduce single-payer government care, and to impose employer and individual mandates. Of course, it was that final option-the individual mandate, requiring that taxpayers either carry insurance or pay for their failure to do so-that featured in the law finally passed by Congress in 2010. Of “critical importance,” the mandate was “the price for the [insurance] industry’s cooperation.” However, “perhaps because prominent Republicans had [originally] endorsed the idea, Democrats underestimated the problems it would cause.” While the mandate still survives in full through 2018, it will continue only nominally thereafter: shortly before this Note went to press, the narrow Republican majorities in Congress-following years of promises to “repeal and replace” -reduced the mandate’s penalty to $0 for 2019 and beyond, although procedural limitations required them to leave intact the theoretical command.

The mandate has been the subject and survivor of substantial litigation, as well as of considerable scholarship. Underexplored, however, is a provision within the mandate giving special consideration and accommodation to those who obtain membership in a type of medical collective known as a health care sharing ministry: such members are entirely exempt from the PPACA’s requirements. This provision is unique in federal law. Unlike traditional conscientious-objector exemptions (which the PPACA also grants), the sharing ministry exemption demands no showing of a religious burden: to avoid the demands of the individual mandate, one need only join a club structured around shared ethical principles. And as a nation, join we have: sharing ministry membership has expanded dramatically since 2010, so dramatically that the exemption may have helped to accelerate the destabilization of the very risk pools that the Act was meant to supply. But the ability to join is not universal to people of all faiths and creeds, for the exemption contains a cutoff-date clause that not only forecloses the formation of new sharing ministries, but also limits the benefit of an exemption to members of just those sharing ministries which were in operation ten years before the PPACA’s passage. Whether by accident or design, the effect of this limitation is to enshrine in law an accommodation for only five ministries-each one explicitly Christian in its tenets and joining requirements.

Persuasive or Deceptive? Native Advertising in Political Campaigns – Note by Irina Dykhne

Political advertising is undergoing what some experts have coined a “revolution,” as digital advertising catches up with-and looks poised to overtake-television advertising as the most effective way of reaching voters during a political campaign. An increasingly popular method of communicating with voters online is through native advertisements-ads that match the editorial content of media or technology platforms, making them less intrusive but also more difficult to identify as advertising. Native ads can be used to match a broad range of environments and now can be found in online newspapers, social media platforms like Facebook, and even mobile and video games. New native advertising techniques have become so sophisticated that, according to studies, many consumers cannot distinguish a native ad from editorial content. Politicians have identified the potential appeal of native ads, particularly as a tool for engaging younger voters through popular mediums such as social media and games. But in the political sphere, due to several outdated loopholes in current federal election law, native ads may be exempt from having to include typically mandatory disclaimers, making them particularly difficult to identify as advertisements. This Note argues that native ads create disclosure issues when they are used in settings such as mobile games, where users may have no expectation of seeing political advertisements, if the platforms are exempt from disclaimer requirements due to alleged practical limitations.

Navigating the Atlantic: Understanding EU Data Privacy Compliance Amidst a Sea of Uncertainty – Note by Griffin Drake

United States government surveillance has reached a point where the government “c[an] construct a complete electronic narrative of an individual’s life: their friends, lovers, joys, sorrows.” In June 2013, Edward Snowden released thousands of confidential documents from the National Security Agency (“NSA”) regarding classified government surveillance programs. The documents brought to light the fact that that the NSA was spying on individuals, including foreign citizens, and deliberately misleading Congress about these activities. According to Snowden, the spying was so extensive that the spying measures, including a program known as “PRISM,” involved the improper mass collection of data from citizens worldwide through NSA interactions with telecom giants like Google, Microsoft, and Facebook, and by tapping into global fiber optic cables.

These revelations sent shockwaves around the globe, and the backlash was swift and unforgiving. One thing became clear to Americans and the rest of the world: the NSA and the U.S. government had prioritized the massive collection of private information over and above the personal privacy rights of the global population. The concept of throwing civil liberties to the wayside through grossly intrusive surveillance pushed Snowden to step forward and reveal what he had seen all too closely. He no longer wanted to “live in a world ‘where everything that I say, everything that I do, everyone I talk to, every expression of love or friendship is recorded.’”

Across the Atlantic, the priorities of European Union member nations stand in stark contrast to those of the United States. The EU takes a much stronger stance on privacy and data protection and restricts how companies transfer data to non-EU nations. In the EU’s Data Protection Directive (the “Directive”), the right to privacy is described as a “fundamental right[ ] and freedom[ ].” This sentiment is echoed in other landmark EU documents such as the Convention for the Protection of Human Rights and Fundamental Freedoms.

At the Intersection of Fourth and Sixth: GPS Evidence and the Constitutional Rights of Criminal Defendants – Note by Tim Kolesk

This Note seeks to address how the sprawl of GPS technology in our lives has permeated into the courts and affected the rights of criminal defendants. The first Part provides general background about the technology and its broader role in the court system, while the second Part examines GPS and the law. The second Part will look at the rules of evidence and the hurdles––however minimal––that GPS evidence may need to overcome when admitted at trial. Because GPS technology, while common, is still subject to errors and tampering, the evidence should be required to be properly authenticated. A GPS record can be––and has been––viewed as a kind of a statement, reporting where a particular person was at a particular time. For this reason, courts have considered the evidence through hearsay analysis and admitted it through the business records exception. Additionally, the second Part discusses the constitutional issues that arise with the introduction of GPS evidence. Specifically, the Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right to cross-examine the person who makes a report submitted at trial. GPS data can be considered a statement against a criminal defendant, about where the defendant was at a particular time––e.g., when a crime was being committed. The issue becomes whether a criminal defendant is entitled to “confront” the makers of these statements. Finally, the third Part of this Note concludes with concerns of how to properly deal with GPS tracking technology, considering how far it can reach, in light of the general public’s seeming non-concern with the level of government use of it. The fact that most of us carry GPS-enabled smartphones in our pockets every day gives rise to questions about the government’s ability to track us and what procedural safeguards should be maintained when evidence from these devices is admitted against an individual at trial.

Transforming the Fair Use Landscape by Defining the Transformative Factor – Note by Laurie Tomassian

Fair use is a legal doctrine that is at once generous and parsimonious to our society’s innovators. The underlying function of fair use is to allow individuals to freely and legally use copyrighted works without obtaining permission from the work’s creator. It serves as an exception to the rights granted by copyright law, promoting society’s liberty of expression and innovation by allowing individuals to infringe on another’s creative efforts. Yet while those taking advantage of the fair use exception have much to gain from the doctrine, their experiences with fair use have been plagued with “pervasive and often crippling uncertainty.”

Since the doctrine’s judicial inception and subsequent statutory codification, courts have struggled to define and apply a uniform test assessing whether a copyrighted work’s use is protected under fair use. In the 1994 case Campbell v. Acuff-Rose Music, Inc., the Supreme Court introduced a new consideration into the fair use analysis: whether and to what extent a secondary use transforms the original copyrighted work. A use that sufficiently transformed the original work would weigh in favor of fair use; conversely, a use that failed to sufficiently transform the work would weigh against a fair use finding. This novel element of the fair use analysis left many questions unanswered. Where does the dividing line between a sufficiently transformative work and one that is not transformative enough lie? How much weight should this new inquiry hold in relation to the pre-existing statutory factors?

An Ocean Apart: The Transatlantic Data Privacy Divide and the Right to Erasure – Note by Paul J. Watanabe

This Note argues that fragmented free expression laws across European member states and data controllers’ ability to select their reviewing supervisory authority give U.S. data controllers latitude to exploit the privacy-expression balance in favor of the U.S. prioritization of expression. Whereas the current literature revolving around the right to be forgotten and the GDPR focuses on reconciling and converging transatlantic values of privacy and free expression, this Note examines the mechanisms of the European Union’s assertion and imposition of privacy values across the Atlantic through the right to be forgotten and the right to erasure and describes weaknesses in the GDPR that may undermine those mechanisms.