The Case for a Taking: Apple and the Government’s Mandated Law Enforcement Backdoor

2020, Current Issue, Online, Volume 52 (2020) Issue 2 (Summer)
Brian Teed. The holidays had arrived, and on December 2, 2015, San Bernardino County threw a party for its staff. The merriment turned to terror when a man and a woman stormed the building, carving through the attendees in a chaos of bullets. Law enforcement arrived quickly, shooting and killing both attackers, Syed Farook and Tashfeen Malik. The two shooters took fourteen lives and injured twenty-one people. Full Article.
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Doctored Claims

2020, Current Issue, Print, Volume 52 (2020) Issue 2 (Summer)
Stephen Kaneshiro. Home health aide Shu-Ying Xu was injured on the job while trying to keep a patient from falling. The injury caused such debilitating pain the Social Security Administration considered her “totally disabled.” Still, Ms. Xu’s workers’ compensation insurer had her undergo an independent medical examination (“IME”) to review her injury, and sent her to Dr. Wayne Kerness. Dr. Kerness did not ask her any questions, completing the exam in two minutes. His report said Ms. Xu could resume working because her disability was only mild. His report also claimed she spoke English (which she did not), and she took no medications (while she took nine). When confronted by these discrepancies, Dr. Kerness admitted only that he erroneously reported Ms. Xu’s English capabilities and affirmed the rest. Full Article.
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Attorneys’ Fees and the Interpretation of Costs Under Federal Rule of Civil Procedure 41(d)

2020, Current Issue, Print, Volume 52 (2020) Issue 2 (Summer)
Morgan Goodin. Judge Learned Hand’s well-known and widely shared dread of lawsuits emphasizes the importance of the goals of Federal Rule of Civil Procedure 41(d): deterrence of both frivolous lawsuits and forum shopping. Rule 41(d) applies to a plaintiff who previously voluntarily dismissed its suit but chooses to refile against the same defendant based on the same claim. By its terms, Rule 41(d) generally deals with two groups of plaintiffs: the particularly persistent true believer or the wealthy forum-shopper. Full Article.
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The New Insider Trading

2020, Current Issue, Print, Volume 52 (2020) Issue 2 (Summer)
Karen E. Woody. Pursuant to the SEC’s Rule 10b-5, in order to obtain a conviction for insider trading based upon a tipper-tippee theory, the government must prove that the tipper received a personal benefit for the tip, and that the tippee knew about that benefit. The last five years of blockbuster insider trading cases have focused on this seemingly nebulous personal benefit test, and the Supreme Court has been unable to clear the muddy waters. As a result, the parameters of insider trading remain hard to pin down and often shift depending on the facts of the most recent case. Two terms ago, the Supreme Court, in an unsurprising unanimous decision in Salman v. United States, reaffirmed the holding of Dirks, from which the personal benefit test arose. The Court in Salman, however,…
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Domestic Nations in the Age of “Tribalism”

2020, Current Issue, Print, Volume 52 (2020) Issue 2 (Summer)
Hilary C. Tompkins. In today’s world, we are bombarded daily with dueling, political narratives from the left and right of the political spectrum. In my view, the current culture clash is a product of young America’s growing pains, where the painful, destructive origins of America’s founding are catching up with the ethos of “America, the land of the free.” Some Americans desperately want to hang onto the cultural myth that America is one-hundred percent “great” with no shortcomings, while others want to redefine it for the future with an acknowledgement of past mistakes. Political commentators have described this divisiveness as a regression into “tribalism.” Yet ironically, this label of “tribalism” does not include the first domestic Indian nations of this country, nor is there an acknowledgement that the pejorative use of the…
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Section 5, Indian Trust Land Acquisitions, and Secretarial Authority

2020, Current Issue, Print, Volume 52 (2020) Issue 2 (Summer)
G. William "Bill" Rice. With introduction written by Robert N. Clinton. At least since the Termination Era of the 1950s, the federal Bureau of Indian Affairs (BIA) has drawn a distinction for purposes of taking tribal land into federal trust status between so-called mandatory acquisitions and claimed discretionary takings. Some statutes, usually tribally specific statutes contained in settlement legislation, such as the Gila Bend Indian Reservation Lands Replacement Act of 1986, require the Secretary of the Interior (Secretary) to take land into trust for designated tribes, often when certain conditions are satisfied. Since such statutes vest no discretion in the Secretary to take such action, these trust acquisitions are often known as mandatory takings. By contrast, the BIA has long taken the position that the only general, i.e. non-tribally-specific, statute authorizing the Secretary…
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Securitizing Digital Debts

2020, Current Issue, Print, Volume 52 (2020) Issue 2 (Summer)
Christopher K. Odinet. The promise of financial technology (“fintech”) and artificial intelligence (“AI”) in broadening access to financial products and services continues to capture the imagination of policymakers, Wall Street, and the public. This has been particularly true in the realm of fintech credit where platform companies increasingly provide online loans to consumers, students, and small businesses by harnessing AI underwriting and alternative data. In 2019 alone, fintech lenders represented nearly 50% of total non-credit card, unsecured consumer loan balances in the United States. One of the most prevalent ways fintech credit firms operate is by securitizing the online loans they help originate. In doing so, fintech lenders are able to access the capital markets and further the spread of borrowed capital and credit risk. Against this backdrop of increasing…
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A Better Hope for Campaign Finance Reform

2020, Current Issue, Print, Volume 52 (2020) Issue 2 (Summer)
Edward J. McCaffery. The American political system, decades into the twenty-first century, seems badly broken. Money lies everywhere at the root of its worst evils. By almost any reasonable account, there is too much money in American politics. The 2016 presidential and congressional election cycle saw an astonishing $6.5 billion in campaign contributions. Looking at individual donors, Sheldon Adelson, the casino magnate from Nevada, gave $82.5 million along with his wife Miriam; the hedge fund manager and environmentalist Tom Steyer topped all donors with $90 million. Things did not stop there; money-in-politics things never seem to stop anywhere. Adelson donated at least $100 million in the 2018 midterm elections, while Steyer has pledged to spend $100 million on his own personal presidential campaign in 2020. Topping them all, Michael Bloomberg, the billionaire former Mayor of…
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Five Privacy Principles (from the GDPR) the United States Should Adopt to Advance Economic Justice

2020, Current Issue, Print, Volume 52 (2020) Issue 2 (Summer)
Michele E. Gilman. Algorithmic profiling technologies are impeding the economic security of low-income people in the United States. Based on their digital profiles, low- income people are targeted for predatory marketing campaigns and financial products. At the same time, algorithmic decision-making can result in their exclusion from mainstream employment, housing, financial, health care, and educational opportunities. Government agencies are turning to algorithms to apportion social services, yet these algorithms lack transparency, leaving thousands of people adrift without state support and not knowing why. Marginalized communities are also subject to disproportionately high levels of surveillance, including facial recognition technology and the use of predictive policing software. Full Article.
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Borders by Consent: A Proposal for Reducing Two Kinds of Violence in Immigration Practice

2020, Current Issue, Print, Volume 52 (2020) Issue 2 (Summer)
Richard Delgado & Jean Stefancic. We describe a new consensual theory of borders and immigration that reverses Peter Schuck’s and Rogers Smith’s notion of citizenship by consent and posits that borders are legitimate—and make sense—only if they are products of consent on the part of both countries on opposite sides of them. Our approach, in turn, leads to differential borders that address the many sovereignty and federalist problems inherent in border design by a close examination of the policies that different borders—for example, the one between California and Mexico—need to serve in light of the populations living nearby. We build on our work on border laws as examples of Jacques Derrida’s originary violence. We assert that laws that exhibit a high degree of originary violence lead, almost ineluctably, to actual…
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