A Hacker “May” Have Accessed Your Data: Can Victims of Data Breaches Sue Before Alleging Misuse?

On February 4, 2021, in Tsao v. Captiva MVP Restaurant Partners, LLC, the United States Court of Appeals for the Eleventh Circuit held that the mere existence of a data breach is insufficient to grant plaintiffs standing to sue the company that exposed their personal information. By doing so, the Eleventh Circuit aligned itself with the Second, Third, Fourth, and Eighth Circuits. In contrast, the Sixth, Seventh, Ninth, and D.C. Circuits have granted standing in such cases. This Comment argues that the Eleventh Circuit properly applied Supreme Court jurisprudence at the time it decided Tsao and, in light of more recent Supreme Court decisions, came to the correct conclusion

The Right of Women to Child Care in the United States

This essay argues that international law binds the United States to adopt comprehensive policy providing accessible and affordable child care as a right of women. Women disproportionately assume the responsibility of unpaid and undervalued child care and therefore are impeded from full participation in public life. These discriminatory effects compound for minority women. Despite its wealth, the United States is outside the mainstream of international morality and out of bounds of its obligations under the American Declaration, ICCPR, ICERD, and customary international law. This essay employs intersectionality analysis and the due diligence principle to add missing texture to the significance of this debate for the United States. The plan proposed by Senator Elizabeth Warren in her 2020 bid for president meets the United States’ affirmative obligations. In adopting this plan, the United States would also align with its allies and advance its own economic, political, and security interests

Executing Defendants with Intellectual Disabilities: Unconstitutional in Theory, Persistent in Practice

In 2002, in Atkins v. Virginia, the Supreme Court abolished the death penalty for defendants with intellectual disabilities. The Court held that executing individuals with intellectual disabilities is cruel and unusual punishment, violating the Eighth Amendment. The Court afforded the states the power to define intellectual disability for the purpose of death penalty eligibility. Post-Atkins cases reveal that the states have composed superficial and oversimplified definitions of intellectual disability. State definitions lack consistency and include nonclinical standards. As a result, courts continue to sentence defendants with intellectual disabilities to death. This Note argues that states should adopt a uniform definition of intellectual disability for the purpose of death penalty eligibility and proposes a model standard in line with clinical standards

Legal Age

How old are you? This deceptively simple question has a clear answer in the law, which is a number measuring the amount of time that has elapsed since birth. However, as scientists discover various biomarkers of human aging and individuals openly embrace more fluid identities, this chronological definition will soon have to compete with biological and subjective alternatives. Legal scholars have previously examined the role of age in the legal system, but they have done so assuming a chronological definition. This is the first Article to examine critically the antecedent question of how we should define legal age after one has reached adulthood. The stakes for this definition are high. Age is ubiquitous in the legal landscape, appearing in the Constitution, antidiscrimination statutes, criminal laws, and public benefits programs. This Article normatively assesses the chronological, biological, and subjective conceptions of age, examining how well they improve the accuracy of the legal system, impact administrative costs, promote autonomy interests, and further antisubordination goals. It then charts three potential paths forward for legal age: abolishing age as a meaningful legal category for adults, particularizing the definition of legal age based on context, and reforming the chronological status quo through the calibration of existing age-based law

A Commons in the Master\u27s House

Almost everyone who reads these words is an institutional insider in some form. Those of us who aspire toward transformation, liberation, and resistance from our institutional settings are forced to confront Audre Lorde’s striking admonition that “the master’s tools will never dismantle the master’s house.” For some, finding themselves in the master’s house is a spur towards purism—a rejection of institutional power in search of a “pure” remove from which to critique it. For others, it is a dispiriting check on their aspirations and an invitation to sullen fatalism. This Essay questions whether we are bound to the hard consequences of purism or whether there are avenues within our institutional infrastructure that allow us to pursue change with radical pragmatism. Canvassing my own historical work on the struggle against slavery in the 1850s, I advance the beginning of an answer: it may be that it is impossible to revolutionize the institutions we work in as insiders, but it is possible for institutional actors to hold deliberative space within their institutions for transformational and radical imagination. By deliberative space, I mean space held open for conversation, democracy, and participatory deliberation. None of us, alone, can imagine our way out of the master’s house. But together, by stepping back and making space, we may be able to open a commons in the master’s house where we listen, dream, and challenge each other

Pornography Isn\u27t the Problem: A Feminist Theoretical Perspective on the War Against Pornhub

Over the last year, Pornhub and its parent company, MindGeek, ignited public outcry against the prevalence of content users posted to their sites featuring sexual violence, nonconsensual pornography, and sex trafficking. Activists, journalists, and legislators allege that Pornhub and similar pornography sites are apathetic toward the victims in these videos and photos while profiting from the ad revenue such content brings to their sites. In December 2021, Senator Josh Hawley proposed the Survivors of Human Trafficking Fight Back Act, proposing to add criminal penalties and a federal cause of action against websites that either post or refuse to remove criminal pornography from their sites. This Note examines the arguments for and against legislation penalizing pornography websites for posting or hosting content of featuring sexual violence through a feminist lens. This style of legislation, which nobly aims to protect survivors of sexual violence, will likely appear again in Congress. This Note argues that Congress should not pass these bills because they subject transactional sex workers and pornography performers to economic and physical harm, making it an ineffective and misguided method to address the core harms of digital sexual exploitation

Resuscitating Consent

The scholarly focus on autonomy in healthcare decision making largely has been on information about, rather than consent to, medical treatment. There is an assumption that if a patient has complete information and understanding about a proposed medical intervention, then they will choose the treatment their physician thinks is best. True respect for patient autonomy means that treatment refusal, whether informed or not, should always be an option. But there is evidence that healthcare providers sometimes ignore treatment refusals and resort to force to treat patients over their contemporaneous objection, which may be facilitated by the incapacity exception to informed consent requirements. This Article uses the case of treatment over objection to resuscitate analysis of consent. This Article asserts that the nature of autonomy in medical decision making is misunderstood, which can lead to wrongful use of the incapacity exception and subsequent harm. Autonomy has become erroneously conflated with an individual’s capacity for rational decision making, obscuring the reality that the exercise of autonomy is mediated by the body. That is, autonomy is not solely cognitive, but also corporeal. Indeed, bodily integrity is a necessary component of autonomy, and so violating bodily integrity by treating patients over their objection is inconsistent with respect for autonomy. Further, when healthcare providers violate patients’ bodily integrity, there can be significant harms to wellbeing. Moreover, if providers misuse the incapacity exception in order to treat patients over their objection, this nullifies informed consent law. This Article argues that patients should not be treated over their objection even when providers do not perceive refusals to be rational because such treatment is inconsistent with respect for patient autonomy and bodily integrity, promotion of wellbeing, and maintenance of the rule of law. In order to prevent or remedy treatment over objection, this Article argues that states should adopt laws that provide adults with absolute legal capacity to refuse medical treatment unless a court overrides their decision. The proposed law thus would prevent healthcare providers from disqualifying their patients from refusing treatment even when there are questions about the patient’s decisional capacity

The Not-So-Straight First Amendment: Why Prohibitions on Conversion Therapy for Children Survive Strict Scrutiny

In November 2020, the United States Court of Appeals for the Eleventh Circuit, in Otto v. City of Boca Raton (Otto II), became the first federal appellate court to hold that bans on Sexual Orientation Change Efforts (“SOCE”) therapy, also known as conversion therapy, for minors are unconstitutional restrictions of freedom of speech. In reviewing the bans under the strict scrutiny standard, the Eleventh Circuit’s decision in Otto departs from the other circuits’ decisions not only in outcome but also in analysis. The Eleventh Circuit, following recent Supreme Court’s decisions, concluded that courts must apply strict scrutiny and that there was insufficient research suggesting that SOCE therapy was harmful toward children, thus invalidating the therapy bans. This Note reviews the Eleventh Circuit’s majority decision in Otto II, and argues that the court wrongly concluded that the anti-conversion therapy bans for minors fail strict scrutiny. Instead, this Note argues that anti-conversion therapy statutes are one of the rare governmental regulations that can withstand strict scrutiny analysis, and the courts must uphold them

High Anxiety: Forcing Medical Marijuana Patients to Choose Between Employment and Treatment

The vast majority of states recognize the potential medical benefits of marijuana in treating debilitating medical conditions. To date, thirty-six states have legalized consumption of medical marijuana and eleven have done the same for low-tetrahydrocannabinol variations of the cannabis plant. Marijuana still remains illegal under federal law, however, subjecting it to stringent regulation since the Controlled Substances Act became law in 1971. Despite this, the wave of state legalization has essentially left the federal government in the past when it comes to marijuana policy. This federal prohibition poses unique problems for medical marijuana patients seeking employment. The current status of the law leaves no federal employment protections for patients who use marijuana to treat a medical condition, even if such usage complies with applicable state law. Further, even states that have legalized medical marijuana offer little in the way of employment protections for patients. Additionally, state disability protection statutes often exclude people engaging in “illegal use of drugs”—which courts have typically interpreted to include federally illegal substances, including marijuana. The majority of courts have also declined to protect medical marijuana use under lawful activities provisions. Some states have enacted provisions protecting medical marijuana patients from employment discrimination on the basis of their marijuana use, but these are just a small minority. This Note argues that the most expedient way to bring medical marijuana patients under the umbrella of employment protections is for courts to recognize protections for medical marijuana use under the tort of wrongful discharge in violation of public policy

Psychosis, Heat of Passion, and Diminished Responsibility

This Article calls for the creation of a generic partial excuse for diminished rationality from mental disability. Currently, most jurisdictions recognize only one partial excuse: the common law heat-of-passion defense. Empirical research demonstrates that populations with delusions experience similar impairments to decision-making capacities as people confronted with sudden, objectively adequate provocation. Yet, current law affords significant mitigation only to the latter group, which only applies in murder cases. Adoption of the Model Penal Code’s “extreme mental or emotional disturbance” (EMED) defense could extend mitigation to other forms of diminished responsibility. However, examination of jurisdictions’ adoption and utilization of the EMED defense shows that, of the few states that have adopted it, most have rejected its diminished responsibility potential. Instead, most retain key features of heat of passion such as requiring an external provoking event, rendering the defense inapplicable to many delusion-driven crimes. A better solution would be to create a generic partial excuse for diminished rationality from mental disability. Over the decades, several prominent scholars have offered proposals for generic partial excuses for partial responsibility, but, as of yet, none has inspired legislative action. This Article’s proposal differs from prior proposals in four key respects. First, it limits its purview to rationality impairments from mental disabilities, a traditionally recognized form of diminished blameworthiness. Second, to be workable and attractive to states, this proposal recommends that states draw definitions of partial responsibility from existing statutory frameworks, namely existing insanity or Guilty But Mentally Ill (GBMI) standards. Such an understanding of partial responsibility should carry greater local legitimacy, and the popularity of GBMI verdicts with legislatures and juries may mean that extending those statutes into the realm of partial responsibility would be more palatable to state legislatures than wholly new language. Third, in light of the realities of mental disorder and its lived experience, our proposal does not advocate for a lesser degree of mitigation for defendants who contributed to their irrationality through failure to comply with medical directives. Fourth, our proposal draws from GBMI statutes and partial responsibility standards outside the United States to suggest sentencing, treatment, and post-sentence options to accompany a partial responsibility verdict and respond to any possible threat to public safety. This Article examines the first two distinctive components of the partial excuse; the third and fourth aspects of the proposal will be developed in a future work