Beyond Discrimination: Market Humiliation and Private Law

Market humiliation is a corrosive relational process to which the law repeatedly fails to respond due to the law’s heavy reliance on the discrimination paradigm. In this process, providers of market resources, from housing and work to goods and services, use their powers to reject or mistreat other market users due to their identities. They thus cause users severe harm and deprive them of dignified participation in the marketplace. The problem has recently reached a peak. The discussion in 303 Creative v. Elenis indicates that the Supreme Court might legitimize market humiliation by granting private providers broad free speech exemptions from nondiscrimination laws. This Article is the first to offer a rigorous analysis of the oral arguments of this pending case. Its troubling findings show why deciding such a critical issue based on abstract preemptive litigation—designed to eliminate those who would be humiliated from the discussion—would be utterly wrong and should be avoided. But the Article not only sounds an alarm in a moment of crisis; it also develops a novel solution. It is time to go beyond discrimination, turning to private law and utilizing its tools to fight market humiliation. The proposed shift requiresmaking more room within private law for a duty not to humiliate. This Article recommends how to do so and what legal reforms of doctrines and remedies are needed. Following these recommendations can empower people humiliated in the marketplace to take action and seek remedies from those who mistreated them. Private law has unique expressive, normative, and remedial powers that can fill the normative void created under nondiscrimination laws. When the market’s inclusiveness is under attack, one salient response is to develop additional ways to secure market citizenship for all

Data Controllers as Data Fiduciaries: Theory, Definitions & Burdens of Proof

As more U.S. states have begun to pass consumer privacy laws, there are growing calls for federal data privacy regulation to ease the burden of compliance with various, sometimes conflicting, state laws. However, scholars and lawmakers are divided on how best to balance robust privacy protections with privacy laws to which businesses can realistically comply. Two prominent regulatory models have emerged from scholarly debate. The Rights/Obligations Model grants consumers various rights and imposes obligations on businesses. This model has been trending in U.S. states, which have mirrored language from the European Union’s General Data Protection Regulation (GDPR) by imposing different obligations on “data controllers” and “data processors.” However, there are shortcomings to this model that limit consumer rights and their ability to vindicate those rights. The Fiduciary Model has also received attention from lawmakers and scholars as an alternative model of regulation. The Fiduciary Model addresses gaps in the Rights/Obligations Model, but prominent critics have voiced skepticism about the workability of the Fiduciary Model. This paper’s contributions are threefold. First, this paper examines the distinction between “data controllers” and “data processors” in the GDPR and whether those terms are likely to apply in a functionally similar way in new U.S. state consumer privacy laws. As companies strategize about how tocomply with laws from a multitude of jurisdictions—and as states incorporate identical language into their own laws—understanding the similarities and differences between how such laws are applied will be crucial. Second, this paper furthers the debate about the workability of the Fiduciary Model by proposing that “data controllers,” as defined in the GDPR and U.S. state laws, should be considered “data fiduciaries.” This definition offers two benefits: (1) defining data fiduciaries as data controllers provides a workable definition that corresponds with fiduciary theory, and (2) harmonizing U.S. and GDPR law. Finally, this paper will argue that companies subject to state consumer privacy laws should be considered “data controllers” by default and bear the burden of rebutting this presumption. This presumption reinforces the substantive policy behind consumer privacy law, accounts for the probability that parties violating consumer privacy laws will most likely be data controllers, and allocates the burden to the party with superior access to the evidence

Immigration Detention Abolition and the Violence of Digital Cages

The United States has a long history of pernicious immigration enforcement and surveillance. Today, in addition to more than 34,000 people held in immigration detention, Immigration and Customs Enforcement (ICE) shackles and surveils an astounding 376,000 people under its “Alternatives to Detention” (“ATD”) program. The number of people subjected to this surveillance has grown dramatically in the last two decades, from just about 1,700 in 2005. ICE’s rapidly expanding Alternatives to Detention program is a “digital cage,” consisting of GPS-outfitted ankle shackles and invasive phone and location tracking. Government officials and some immigrant advocates have characterized these digital cages as a humane “reform,” ostensibly an effort to decrease the number of people behind bars. This Article challenges that framework, illuminating how, instead of moving us closer to justice and liberation—and toward abolition—digital cages disperse the violence of immigration enforcement and surveillance more broadly, and more insidiously, ensnaring hundreds of thousands more immigrants, families, and communities. The increasing digitization of immigration enforcement and surveillance is part of a growing, and expansive, geography of violence. This Article argues that if we want to take deportation abolition seriously—that is, an end to immigrant detention, enforcement, and deportation—we must consider the impact of this growing surveillance. Building upondeportation abolition literature situating immigration detention as a form of violence, this Article posits that rather than mitigate violence, digital cages create a “violence of invisibility” that is equally, if not more, dangerous. Digital cages, masquerading as a more palatable version of enforcement and surveillance, create devastating harms that are hidden in plain sight, while duping us into thinking of these measures as more humane. This Article concludes by arguing that digital cages are a “reformist reform” that merely make more efficient the kind of oppressive and racialized violence that has long informed the United States’ immigration enforcement regime. If we truly seek an end to this violence, this Article argues for abolition—not just of detention, but of digital cages as well

The Minerals Challenge for Renewable Energy

One potential obstacle to a successful energy transition involves the critical minerals used in production of photovoltaic solar panels, wind turbines, electric vehicles, and batteries. A substantial portion of these will have to come from new and expanded mining operations around the world. But mining is controversial, in part due to the past failures of operators to protect communities and the environment. This Article considers how nations can responsibly identify, source, and process these minerals, and then deploy them in renewable energy products. Its scope is global, but U.S. laws and policies take center stage with a nod to the broader global aspects involved. These policy issues include the emerging commitment of private companies to environmental, social, and governance standards, and the federal government\u27s role in authorizing mining operations, especially on public lands

Machine Manipulation: Why an AI Editor Does Not Serve First Amendment Values

The past few years have seen increasing calls for regulation of large social media platforms, and several states have recently enacted laws regulating their content moderation, promotion, and recommendation practices. But if those platforms are exercising editorial discretion when carrying out these tasks, many of the regulations will run into constitutional concerns: the First Amendment protects the “exercise of editorial control and judgment” by publishers over their choice of content and how it is presented. However, the editorial operation of social media platforms differs significantly from traditional media, most importantly in the use of artificial intelligence (AI) for editorial decision-making. While courts have thus far not given much attention to the implications of this use, this Note argues that using AI for editorial decision-making should not be entitled to the same protection as a human decision-maker. After introducing how social media platforms employ AI in their editorial operations, it outlines the foundational values of democratic self-governance, the marketplace of ideas, and autonomy underlying the First Amendment, and assesses how the use of AI impacts those values. The Note concludes that the ability of AI to manipulate human behavior and preferences, combined with the delegation of decisional autonomy from humans to AI, harms the foundational First Amendment values. Therefore, the use of AI is not deserving of the same protection as human editorial decision-making

Union Autonomy and Federal Intrusion

Union autonomy, a critical aspect of the health and growth of unions and employee power broadly, is weakened by (1) the Department of Justice’s (DOJ) attempts to target organized crime through civil Racketeer Influenced and Corrupt Organizations Act (RICO) litigation against unions and (2) the creation of federal trusteeships in settlement, both of which can be analyzed through litigation between the DOJ and the International Brotherhood of Teamsters (Teamsters or IBT) at the end of the 20th century. The field of compliance offers a solution to prevent these breaches of union autonomy. Relying on the Federal Sentencing Guidelines and the Environmental Protection Agency’s (EPA) Audit Program, this Note recommends a new program to the National Labor Relations Board (NLRB). The NLRB should incentivize unions to implement internal compliance programs drawing inspiration from corporate America, as these businesses have historically faced far less federal intrusion than unions

Uncommon Carriage

As states have begun regulating the carriage of speech by “Big Tech” internet platforms, scholars, advocates, and policymakers have increasingly focused their attention on the law of common carriage. Legislators have invoked common carriage to defend social media regulations against First Amendment challenges, making arguments set to take center stage in the Supreme Court’s impending consideration of the NetChoice saga. This Article challenges the coherence of common carriage as a field and its utility for assessing the constitutionality and policy wisdom of internet regulation. Evaluating the post-Civil War history of common carriage regimes in telecommunications law, this Article illustrates that conceptions of common carriage and its treatment by the courts vary significantly and are contingent on specific historical and technological circumstances. The Article observes that common carriage is an attractive nuisance for policymakers and judges. The doctrine distracts from difficult normative questions about the permissibility of government interventions into speech and the editorial discretion of internet platforms. The Article disentangles talismanic invocations of “common carriage” by isolating three distinct issues: (1) the classification of “common carriers,” (2) the imposition of “common carriage” rules on those carriers, and (3) the First Amendment problems that flow from the imposition. Applying this novel three-part framework, this Article argues for a context-sensitive approach to internet regulations. This approach evaluates the designation of carriers, the imposition of rules, and the role of the First Amendment at a granular level to more robustly account for the complexity of contemporary internet platforms

Intersectionality Matters in Food and Drug Law

Feminist scholars critique food and drug law as a site of gender bias and regulatory neglect. The historical exclusion of women from clinical trials by the FDA prioritized male bodies as the object of clinical research and therapies. Likewise, the FDA’s prior restriction on access to contraceptive birth control illustrates how patriarchal and paternalistic attitudes within the Agency can harm women’s reproductive health. However, there is little analysis of how race and gender intersect in this domain. This Article uses the regulation of skin-lightening cosmetics products to illustrate why and how intersectionality matters in food and drug law. While the inadequate regulation of cosmetics has a disparate impact on women’s health, it is women of color who predominantly use skin-lightening products, similar to some hair care products that are disproportionately marketed to women of color. Additionally, skin-lightening products are often toxic because they contain mercury and other harmful substances. The skin-lightening industry has also historically (and contemporarily) targeted women of color with racist and colorist advertising messages that idealize light skin as the pinnacle of beauty. The inadequate regulation of cosmetics illustrates why intersectional analysis is essential in food and drug law. An intersectional lens uncovers the various underlying forces that produce a disparate health impact for women of color: systemic racism in health, racially targeted marketing, and hegemonic beauty norms shaped by race and skin color constructs. The increased toxicity of these products also overexposes women of color to more serious health risks from cosmetics. While cosmetics reform has ushered in new regulations that improve the Agency’s authority to regulate cosmetics, the health risks posed to women of color from toxic personal care products in general deserves urgent attention in food and drug discourses. Intersectional analysis uncovers the contours of this urgency and offers an important response to the de-prioritization of women of color within food and drug law discourses