No Peeking: Addressing Pretextual Inspection Demands by Competitor-Affiliated Shareholders

This article exposes how Delaware private companies are vulnerable to pretextual inspections under the guise of valuation by shareholders who are affiliated with competitors of the companies. The Delaware Court of Chancery’s 2020 decision in Woods v. Sahara Enterprises, Inc., which deviated from established law by switching the initial burden of proof of the shareholder’s motive to the target company, exacerbated this vulnerability. This article argues for reversing that decision and proposes changes in multiple areas of law to help companies fend off prying competitors who abuse statutory shareholder inspection rights for unfair advantages in competition

Positionality, Intersectionality, Power Dynamics in Community Participatory Research to Define Public Safety in Black Communities

Community-based participatory research (CBPR) is necessary for shifting knowledge and empowering community members to establish ownership over research. It was used in this current project to study safety in predominately Black communities. Findings illustrate how the embodiment of power was a present theme and impacted the partnerships among the academics and community, as well as defining “who” could speak on the issues the project was attempting to address. This paper builds upon previous research in CBPR findings to illustrate how community leaders can shape the research, the importance of defining community, and the need to bring to the forefront issues of intersectionality and positionality. In doing so, it attempts to reshape existing CBPR models to better account for the fluid, interactive relationships among the academics, community researchers, and the community leader and expand upon the role of intersectionality in these relationships

Freedom of Algorithmic Expression

Can content moderation on social media be considered a form of speech? If so, would government regulation of content moderation violate the First Amendment? These are the main arguments of social media companies after Florida and Texas legislators attempted to restrict social media platforms’ authority to de-platform objectionable content. This article examines whether social media companies’ arguments have valid legal grounds. To this end, the article proposes three elements to determine that algorithms classify as “speech:” (1) the algorithms are designed to communicate messages; (2) the relevant messages reflect cognitive or emotive ideas beyond mere operational matters; and (3) they represent the company’s standpoints. The application of these elements makes it clear that social media algorithms can be considered speech when algorithms are designed to express companies’ values, ethics, and identity (as they often are). However, conceptualizing algorithms as speech does not automatically award a social media company a magic shield against state or federal regulation. It is true that social media platforms’ position is likely to be favored by the U.S. Supreme Court, which has increasingly taken an all-or-nothing approach whereby “all speech invokes strict scrutiny of government regulation.” Instead, this article argues for the restoration of the Court’s approach prior to the 1970s, when decisions emphasized considerations such as the democratic values of speech, the irreplaceability of forums, and the socioeconomic inequality of speakers and audiences. Under the latter principles, social media companies’ market dominance and their harmful effect on juveniles or political polarization would justify legislative efforts to increase algorithmic transparency even if they restrict social media’s free speech. Therefore, most big tech companies’ algorithms can and should be regulated for legitimate government purposes

Did the Supreme Court in TransUnion v. Ramirez Transform the Article III Standing Injury in Fact Test?: The Circuit Split Over ADA Tester Standing and Broader Theoretical Considerations

Some commentators have criticized the Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins and especially the Court’s 2021 decision in TransUnion LLC v. Ramirez for limiting Congress’ authority to confer standing by statute. For example, in his article, Injury in Fact Transformed, Professor Cass Sunstein argues that TransUnion is a “radical ruling” that uses the injury in fact standing requirement to limit the authority of Congress to enact only statutes that address harms that have a close relationship to traditional or common law harms. By contrast, Professor Ernst Young argues that the Supreme Court’s injury in fact doctrine is justified in light of the history of equitable practice requiring a “grievance” rather than just a cause of action. The question of how much the TransUnion decision has narrowed Article III standing has resulted in a circuit split regarding when civil rights testers filing suits under the Americans with Disabilities Act have standing. The Tenth Circuit’s 2022 decision in Laufer v. Looper and similar decisions in the Second and Fifth Circuits have read the TransUnion decision to limit but not eliminate the broad tester standing in the Supreme Court’s 1982 decision in Havens Realty Corp. v. Coleman. By contrast, the First Circuit, in its 2022 decision in Laufer v. Acheson Hotels, LLC, explicitly rejected these decisions in the Tenth, Second and Fifth Circuits to conclude that the TransUnion decision had not overruled the expansive tester standing in Havens Realty. The Eleventh Circuit had previously taken a similar position as the First Circuit but did not explicitly disagree with other circuits. On March 27, 2023, the Supreme Court granted certiorari in the First Circuit decision for the 2023-24 term. This is an important issue because a broad reading of the TransUnion decision could limit tester standing and affect many other federal statutes that go beyond traditional common law damages. This article will argue that one’s view of standing issues depends heavily upon whether one favors expansive government regulation as a social good or is a libertarian skeptical of government regulation

Voluntary Dismissals, Jurisdiction & Waiving Appellate Review

Litigants have long tried to manufacture a final, appealable decision by voluntarily dismissing their claims after an adverse interlocutory decision. Recently—and especially since the Supreme Court’s decision in Microsoft Corp. v. Baker—courts have thought that these dismissals created a jurisdictional problem. Either the voluntary dismissal did not produce a final decision, or the dismissal extinguished Article III jurisdiction. But the problem with these appeals is not jurisdictional. It’s waiver. A voluntary dismissal after an adverse interlocutory decision waives the right to appellate review. This Article shows the flaws in the jurisdictional rejection of this kind of manufactured finality and offers a much simpler reason for barring them. So when this issue makes its way back before the Supreme Court, the Court should recognize what the issue is, has been, and should remain: an issue of waiver