Key Tam: Giving Teeth to Federal Data Security Enforcement

Data breaches wreak havoc on data-handling entities, weigh heavily on the minds and hearts of breach victims, and elude the efforts of regulators and scholars alike. Since 2005, declared the “Year of the Data Breach,” every year has seen an increase in the number and impact of breaches. Data breaches cost United States companies billions of dollars, undermine consumer confidence, exacerbate geopolitical tensions, increase anxiety, and even result in bodily harm and death. Nevertheless, a suitable federal framework has yet to be enacted to address the perennial problem. Though the data breach epidemic may seem like a recent phenomenon—a biproduct of the current data-dependent internet society—data privacy and security concerns have existed as early as the first United States Census. Through a process of innovation and-response, the regulatory framework has developed into a haphazard patchwork of industry-specific standards that baffle both entities and consumers. Meanwhile, attempts to recover damages through civil actions are rarely successful in the face of procedural barriers, and the majority of federal data breach enforcement comes under a century-old law. This Note proposes that qui tam—an enforcement mechanism that allows private individuals called “relators” to sue on behalf of the Government to vindicate public rights—would serve to address many of the issues that plague data breach enforcement. This Note argues that qui tam mechanisms should be included in federal data security legislation to properly address the underenforcement issues and barriers to successful litigation that allow the age of the data breach to rage on. It further analyzes the current use of qui tam mechanisms in the False Claims Act as recently applied to government data contractors. Finally, it proposes two possible applications of qui tam: first, applying qui tam to a data security statute under a theory of the relator as an agent of the Government; and second, applying qui tam under the theory of the relator as a partial assignee of the Government’s claim. These proposals allow for better oversight and enforcement of data security standards to put the age of the data breach in society’s rearview mirror

Building Bridges: Queer Rights in and out of the Courts

It is unclear whether the Equal Protection Clause of the Fourteenth Amendment prohibits states from differentiating between people based solely on their sexual orientation and/or gender identity. This Note analyzes the Supreme Court’s tiers of scrutiny—rational basis review, intermediate scrutiny, and strict scrutiny—to argue that a new suspect class is warranted for sexual orientation and gender identity (SOGI), triggering strict scrutiny for SOGI classifications. This analysis shows that a united SOGI class meets all of the characteristics associated with suspect classes, including a history of anti-LGBTQIA+ discrimination and the irrelevance between SOGI and one’s ability to contribute to society. This Note highlights the importance of uniting sexual orientation and gender identity into a single suspect class and presuming that any government actions on these bases are unconstitutional

Against Attorney General Self-Referral in Immigration Law

This Article advances a rule-of-law-based critique of the Attorney General’s immigration self-referral power. We argue that the Attorney General’s self-referral and review power over pending immigration proceedings allows an appointed Executive Branch official to engage in unchecked and unilateral lawmaking and, therefore, should be abolished. Scholars have typically understood legal stability, prospectivity, and the separation of policymaking from adjudication as requirements of the Anglo-American rule of law regime which protect individual freedom and equality. It is traditionally believed that by limiting policy-driven legislation to prospective, general laws which are enacted through an explicitly legislative process, individuals may be secure against the sudden disappearance of their vested legal interests and disruption of their plans of life. And while it is true that the common law permits judicial rulemaking to change laws with retroactive effect, the norms and ethics of the judicial process at least represent an effort to keep such changes rooted in preexisting law rather than reasons of state by requiring judges to be separate from the policymaking enterprise. The Attorney General’s immigration rulemaking by adjudication features none of these protections. In contrast, the Attorney General’s self-referral power over immigration cases, by which a political officer can directly take control of a pending adjudication and use it to make precedential rulings motivated solely by policy considerations and with retroactive effect, constitutes an invisible, unpredictable, and insurmountable barrier for immigrant respondents. The referral power subjects the legal interests of immigrants—and of those U.S. citizens who share interests with immigrants as family members, employers, and otherwise—to instability and uncertainty, and uses individual immigrant respondents merely as means for the implementation of broader political goals. As our research illustrates, from 2017 to 2021 the Trump administration used the self-referral power in seventeen different significant cases, to make major changes to the definition of asylum, the docket management strategies of immigration judges, and the extent of immigration consequences for immigrants with criminal convictions. It even used the Attorney General referral and review power to expand the authority of the Attorney General to make binding law, by broadening the existing scope of the Attorney General referral and review power! In this, and myriad other ways, the referral power is incommensurate with the structures, practices, and norms of our contemporary judicial system, and the animating precepts of the constitutional framework that underpins that modern system. Accordingly, the referral and review power stands as a key case study of the importance of separation of powers and judicial independence for the rule of law

Reflections of a Supreme Court Commissioner

The Presidential Commission on the Supreme Court of the United States was given a fundamentally frustrating task: bipartisan expert analysis of an institution whose greatest challengers are political. I served on that commission and offer my own views on Supreme Court reform: Court packing is lawful but unjustified. Term limits, without a constitutional amendment, are not lawful and maybe also unjustified. Generally democratizing the Court through jurisdiction stripping is unlikely to be effective, and doing so through various other means is unlikely to be lawful. And the Supreme Court’s shadow docket, though not free from trouble, does not admit of simple reforms either. I conclude with some reflections on the commission itself

The Question Not Presented: Government and Social Media Corruption After Murthy v. Missouri

The Supreme Court in Murthy v. Missouri in 2024 dismissed a suit by multiple plaintiffs alleging that the Biden Administration’s efforts to persuade social media platforms to monitor content violated the First Amendment. Although the Court did not directly decide the constitutionality of the government policy, the Court imposed a high bar for plaintiffs other than social media platforms to show standing to challenge the constitutionality of government pressure on the platforms./= / \u3e/= / \u3eBut the coercion problem is not the only troubling aspect of this government policy. The question not presented to the Court was the corruption problem. What happens when powerful politicians pressure social media platforms to do what they want for their own political advantage and then suggest that government regulation of the platforms will be impacted by “voluntary” adherence to content moderation norms? Politicians could seek more moderation or less moderation of platform content depending on their political objectives. Is this a proper use of government power, and will more of it be encouraged by the Court’s decision in Murthy v. Missouri?/= / \u3e/= / \u3eThis Article addresses the heightened risk of quid pro quo relationships between public officials and social media platforms after the Murthy holding made it difficult for plaintiffs to sue the federal government for pressuring social media on content moderation. Government pressure on social media platforms exerted with corrupt intent presumably will be outside the reach of the courts when most affected platform users don’t have standing to sue./= / \u3e/= / \u3eThis Article explains why bribery laws are insufficient to deal with this corruption problem. A case study is presented by an October 2019 meeting between Facebook CEO Mark Zuckerberg and President Donald Trump and his son-in-law Jared Kushner at the White House. /= / \u3e/= / \u3ePresident Trump, as one next president, has close relationships with titans of the social media industry, including Elon Musk, owner of X. Trump also is the controlling shareholder of his own social media platform, Truth Social. The potential for quid pro quobetween politicians and social media now is stronger than ever./= / \u3e/= / \u3eThis Article also addresses legislative and regulatory solutions to this problem