Category Archive: Notes

Life is Short. Go to Court: Establishing Article III Standing in Data Breach Cases – Note by Megan Dowty

This is the digital age. As “the ratings machine, DJT [Donald J. Trump],” says, “all I know is what’s on the internet,” or “the cyber,” as he calls it. People’s use of and dependency on the Internet has made data breaches a serious and widespread threat to people’s privacy and security. In 2016, there were 1,093 data breaches, up from 780 in 2015. 75.6% of companies suffered at least one successful attack. Essentially “there are only two types of companies left in the United States, according to data security experts: ‘those that have been hacked and those that don’t know they’ve been hacked.’”

Major companies such as LinkedIn, Target, Ebay, Yahoo, Anthem, and Ashley Madison have been subject to data breaches, and subsequently to lawsuits. Not only can data breaches threaten people’s financial security, but breaches like Ashley Madison’s—a dating site whose slogan up until July 2016 was “Life is Short. Have an Affair”—can threaten people’s home lives and shatter careers. The government is not immune to dangerous cyber attacks either. Both the U.S. Office of Personnel Management and the Democratic National Committee (“DNC”) have suffered breaches. Presidential candidate Hillary Clinton’s e-mails were leaked as part of the DNC breach, which became a source of controversy throughout her campaign. Further, the U.S. intelligence community has concluded that the hack was tied to and possibly directed by the Russian government, which sets a troubling precedent for future hacks by hostile foreign governments.

Plaintiffs whose information has been exposed due to a company data breach have attempted to sue the hacked companies storing their information based on causes of action such as negligence, breach of contract, unjust enrichment, breach of fiduciary duty, unfair and deceptive business practices, invasion of privacy, violation of the federal Fair Credit Reporting Act (“FCRA”), and violations of various state consumer protection and data breach notification laws.

Easy Come, Easy Go: A Guide to California Cap-and-Trade Spending – Note by Jonathan Kintzele

At the time of this writing, over $1.4 billion of unallocated polluter regulatory fees collect dust in a special government bank account as California agencies labor to figure out how to spend it, or more accurately, how to spend it fast enough. While state agency pockets smolder with anticipation, one inconvenience stands in their way: the cash must be used for programs or developments that reduce greenhouse gas (“GHG”) emissions. Thus, as lawmakers toil through the night to engineer new and creative spending proposals—ink dripping from the gold-embroidered parchment—the words “emission reductions” continue to get lost between nouns, verbs, exclamations points, and dollar signs.

Simply put, putting a price on carbon emissions has never been more lucrative for the State of California. Polluter fees not only fund the State’s climate change agenda, but also serve as the fiscal linchpin of the Governor’s statewide budgetary plan, from affordable housing development subsidies to the State’s herculean $64 billion bullet-train project. California has never been a state fearful of taking controversial positions on private property rights and protecting the public welfare, but with cap-and-trade, the entire world is watching.

California is the twelfth largest GHG producer in the world and the original American cap-and-trade pioneer. On January 1, 2013, the state implemented the most complex market-driven environmental regulatory scheme of its kind ever put into action. California’s cap-and-trade program was designed to be a model which not only other states in the western United States could follow, but one that could eventually be replicated in developed economies across the world in the global movement to reverse centuries of unrestrained GHG pollution. As a bona fide experimental prototype, the importance of getting the system right cannot be overstated. However, as a concept-in-progress that regulates the sixth largest economy in the world—greater than the likes of Italy, Russia, and India—understanding its contours and evolving mandates could not be more important to the businesses and industry practitioners that are subject to its control. As such, this Note will analyze the practical components of the cap-and-trade program, assess the potential legal risks of current spending trends, and ultimately recommend additional, apt, and effective appropriation vehicles for cap-and-trade revenue.

Get a Warrant: A Bright-Line Rule for Digital Searches Under the Private-Search Doctrine – Note by Dylan Bonfigli

A girlfriend hacks her boyfriend’s computer and discovers evidence of tax evasion. She contacts a local law enforcement officer who arrives at her house and looks at the files she found. Without a warrant, the officer opens other files in the same folder the girlfriend had searched. The officer notices another folder labeled “xxx.” He opens the folder and discovers child pornography. The officer seizes the computer based on what he found. The boyfriend is indicted for possession of child pornography and tax evasion. Before trial, the boyfriend moves to suppress all evidence obtained pursuant to the officer’s warrantless search of the computer. What evidence should the judge suppress?

The answer turns on the Fourth Amendment’s private-search exception. Under this exception, a government agent may recreate a search conducted by a private individual so long as the agent does not “exceed the scope” of the prior private search. The question under the existing framework is: at what point did the officer exceed the scope of the prior search—if at all? Was it when he viewed files the girlfriend had not viewed, when he opened files in a different folder, or did he stay within the scope of the girlfriend’s search by only searching the computer’s hard drive? This is what I will refer to as the denominator problem, which asks what courts should use as the unit of analysis to measure the scope of a digital search.

There are at least four competing approaches to the denominator problem, discussed in Part II, and the Supreme Court has provided little guidance on how the private-search doctrine applies to digital searches, resulting in a circuit split. Until this issue is resolved, law enforcement has little guidance on when to obtain a warrant following a private search and can unknowingly subject individuals to unreasonable invasions of privacy, which may result in suppression of relevant evidence. One recent example is United States v. Lichtenberger.

Juvenile Justice: Searching for a Flexible Alternative to the Strict and Over-Inclusive Transfer System for Serious Juvenile Offenders – Note by Thucvy H. Nguyen

This Note examines the experiences of children in the juvenile and criminal justice system with the purpose of finding an alternative to keeping Geyser and Weier in the criminal system. Part I provides a summary of Geyser and Weier’s pending case, which has been pieced together from various news outlets. Part II looks at the development of the juvenile justice system and the transfer system, with an in-depth analysis of the three primary waiver mechanisms. Part II also examines the Wisconsin laws that Geyser and Weier are subject to, and the primary ways in which the juvenile justice system differs from the criminal justice system. Part III describes how the current justice system in America has failed to meet the needs of juvenile offenders. Part IV discusses the reasoning involved in U.S. Supreme Court decisions that have treated juvenile offenders differently than adult offenders. Part IV also presents studies that explain why the development of children’s brains provides support for this differential treatment. Part V analyzes various alternatives to the prevailing regime which keeps juvenile offenders in the juvenile justice system or transfers them to the criminal justice system. Lastly, Part V also proposes that blended sentencing, while still an imperfect solution, is the best alternative to automatically subjecting juveniles who commit violent offenses to the criminal justice system. With respect to Anissa Weier, blended sentencing would be the best alternative, because her situation could be reevaluated once she reaches the upper age limit of juvenile court jurisdiction. In the case of Morgan Geyser, under a blended sentencing regime, she could be transferred to the mental health courts and placed in a mental health facility within a designated children’s ward to receive treatment for schizophrenia, as both the juvenile and criminal justice systems are ill-equipped to house juvenile offenders with serious mental illnesses.

(Un)reasonable Religious Accommodation: The Argument For an “Essential Functions” Provision Under Title VII – Note by Laura E. Watson

Title VII of the Civil Rights Act of 1964 requires employers to make reasonable accommodations for their employees’ sincerely held religious practices and beliefs as long as the accommodation does not pose an “undue hardship” on the conduct of the employer’s business. But “undue hardship” is a vague term that has led to unclear, inconsistent, unfair, and even discriminatory precedent. This Note proffers a new framework for religious discrimination law through the incorporation of the “essential functions” provision of a similar law, Title I of the Americans with Disabilities Act, in order to strike a fairer balance between the competing rights and interests of employers and employees.

Stateless in the United States: The United Nations’ Efforts to End Statelessness and American Gender Discrimination in Lynch v. Morales-Santana – Note by Rick Zou

In 2014, the United Nations initiated a plan to end statelessness, the widely deplored condition in which a person does not have a nationality or the rights conferred by citizenship, which aims to fill gaps in national laws that contribute to statelessness. One such gap exists in the United States’ Immigration and Nationality Act—specifically, a gender-based physical-presence requirement that prescribes how American parents can confer citizenship to their children. The Second Circuit, reviewing the physical-presence requirement, held it unconstitutional in Morales-Santana v. Lynch, despite a conflicting ruling from the Ninth Circuit, because the requirement violates the Constitution’s Equal Protection Clause. Having granted certiorari to Morales-Santana, the Supreme Court must take this important opportunity to affirm the Second Circuit to ensure that no American citizen is made stateless by a wrongful interpretation of the Immigration and Nationality Act. This Note explores relevant domestic and international laws and conventions and explains why affirming the Second Circuit in Morales-Santana is consistent with both the United Nations’ efforts to end statelessness and the U.S. Constitution.

Redressing the Legal Stigmatization of American Samoans – Note by Joseph E. Sung

Although the plain text of the Fourteenth Amendment states that “[a]ll persons born . . . in the United States and subject to the jurisdiction thereof, are citizens of the United States,” “[t]ens of thousands of Americans who hold U.S. passports are” not legally recognized “as U.S. citizens.” How is this possible? The answer is that these Americans were born in the United States territory of American Samoa rather than anywhere else in the United States.

American Samoa is an “unorganized unincorporated territory” of the United States, located 2,500 miles south-southwest of Honolulu and 1,800 miles north-northeast of New Zealand in the South Pacific. Despite having been a part of the United States for over a century, American Samoa is the only United States territory in which its people are not granted United States citizenship by virtue of birth within the territory. The federal government classifies American Samoans as “non-citizen national[s],” a legal status subordinate to that of full citizenship.

Packing Heat: Judicial Review of Concealed Carry Laws Under the Second Amendment – Note by Kevin Behne

The regulation of firearms is one of the most volatile policy issues in the United States. Virtually every effort to regulate—or deregulate—the accessibility or usage of firearms raises dueling concerns of public safety and individual rights. Federal courts are no exception to the controversy, offering a microcosm of the broader public debate. The Supreme Court’s sharply divided decisions in District of Columbia v. Heller and McDonald v. City of Chicago are illustrative of the point; while Heller established the Second Amendment right to keep and bear arms in the individual context, and McDonald extended the right as fundamental and binding on the states, the decisions did little to fix the scope and magnitude of the newly created right, leaving it open to spirited debate. In the wake of the two decisions, lower courts have been left to grapple with how far and with what rigor to scrutinize state and local laws that may burden the right to keep and bear arms.

People may kill and injure people, but guns appear to be a weapon of choice. In the United States alone, there are over 32,000 firearm-related deaths annually and an additional 78,000 persons are injured as a result of interpersonal firearm violence. While a significant portion of the casualties are attributable to suicides, accidents, law enforcement, or self-defense, an appreciable portion are the product of criminal activity. Although exact numbers are difficult to ascertain, the Department of Justice estimates that each year, approximately 470,000 persons become victims of a crime committed with a firearm. But perhaps the most visible manifestations of gun violence are “mass shooting” incidents, drawing substantial media coverage and public concern. These variables, among others, animate concerns of public safety, giving rise to policy arguments for more stringent regulations of firearms.

Secrecy, Standing, and Executive Order 12,333 – Note by Charlotte J. Wen

In summer of 2013, the National Security Agency (“NSA”) rocketed into headlines when Glenn Greenwald, a reporter at the Guardian, broke a stunning, Orwellian story: pursuant to top-secret court orders, Verizon and other major telephone service providers had granted the NSA blanket access to their American customers’ call records. These companies, Greenwald claimed, were providing the NSA with telephony metadata—general information about each of their customers’ calls, such as phone numbers, call lengths, and call times. In the face of the ensuing public outcry, the American government acknowledged the existence of the telephony metadata program. In doing so, however, it was careful to assert that the program, while secret, was nonetheless constitutional, and that the court orders had been issued pursuant to the Foreign Intelligence Surveillance Act (“FISA”).

How Vague is too Vague?: Resurrecting the Void-for-Vagueness Doctrine in the Context of the Armed Career Criminal Act – Note by Ava Miller

In Georgia, Shawntrail Lee was convicted of possessing a firearm as a felon, —a crime that warranted a sentence of roughly three to four years in prison under the Federal Sentencing Guidelines. However, Lee’s prescribed sentencing range increased to a minimum of fifteen years under the Armed Career Criminal Act (“ACCA”) because his criminal history included three other crimes that the district court classified as “violent felon[ies].” Lee appealed his sentence, arguing that his predicate conviction of conspiracy to commit armed robbery did not constitute a “violent felony,” and the Eleventh Circuit Court of Appeals agreed, vacating his sentence.

Conversely, in North Carolina, Demontrell White was convicted of possessing a firearm as a felon and was sentenced to fifteen years in prison after the Fourth Circuit Court of Appeals determined that his prior conviction of conspiracy to commit robbery with a dangerous weapon was a “violent felony” under the ACCA.