Consumer Privacy in a Behavioral World

Ignacio N. Cofone & Adriana Z. Robertson

Volume 69, Issue 6, 1471-1508

On March 28, 2017, Congress killed the FCC’s attempt to protect consumer privacy on the internet and allowed ISPs to continue to track their users’ online behavior. We evaluate the impact of this decision for consumer privacy in light of biased beliefs and information overload. We do so through a well-documented behavioral bias: Non-belief in the Law of Large Numbers. In doing so, we provide a framework for protecting consumer privacy. We then suggest private law and regulatory solutions to do so in a more effective way than either the current or the now-repealed regime.

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Gerrymandering and Conceit: The Supreme Court’s Conflict with Itself

McKay Cunningham

Volume 69, Issue 6, 1509-1544

The Supreme Court has long held that extreme partisan gerrymandering violates equal protection, but has simultaneously dismissed gerrymandering disputes as nonjusticiable political questions. In particular, the Court has maintained that no manageable standard yet exists by which the Court could implement the promise of equal protection to partisan redistricting.

This Article analyzes the manageable standard requirement, revealing the Court’s failure to consistently apply it. Why is “fairness” a manageable standard in one context but not another? How are standards that measure one’s shocked conscious, or weigh the totality of the circumstances manageable? Importantly, when the Court has dismissed cases for lack of a manageable standard, it seemingly did so to preserve confidence in the judiciary.

Recast in this light, the manageable standard requirement serves as proxy for preserving judicial legitimacy. This Article argues that the Court should no longer hide behind the manageability barrier because partisan gerrymandering is an artificial obstacle to democratic governance. Court intervention to ensure democracy’s proper functioning was (1) anticipated by the Framers, (2) memorialized in the Constitution’s form and structure, and (3) exercised by the Court without loss of judicial legitimacy in analogous contexts. This Article posits that judicial intervention to unblock the avenues of political change is one of the Court’s central responsibilities, that in similar contexts the Court has recognized as much, and that it should do so again.

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Unmothering Black Women: Formula Feeding as an Incident of Slavery

Andrea Freeman

Volume 69, Issue 6, 1545-1606

Laws and policies that impede Black mothers’ ability to breastfeed their children began in slavery and persist as an incident of that institution today. They originated in the practice of removing enslaved new mothers from their infants to work or to serve as wet nurses for slave owners’ children. The stereotype of the bad Black mother justified this separation. This trope also underlies racial disparities in breastfeeding rates in the present. The mythical Mammy loved the White children under her care but callously neglected her own. Today, the Welfare Queen reproduces for the sole purpose of gaming the system. Collective belief in the existence of the bad Black mother leads to low or no investment in resources for Black mothers who want to breastfeed, and to laws and policies that inhibit their opportunities to do so. Black infants and mothers suffer from related health conditions, including infant mortality, at disproportionately and unacceptably high rates. Structural reforms grounded in constitutional principles are necessary to reverse this manifestation of food oppression.

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“Innocence” and the Guilty Mind

Stephen F. Smith

Volume 69, Issue 6, 1609-1672

For decades, the “guilty mind” requirement in federal criminal law has been understood as precluding punishment for “morally blameless” (or “innocent”) conduct, thereby ensuring that only offenders with adequate notice of the wrongfulness of their conduct face conviction. The Supreme Court’s recent decision in Elonis v. United States portends a significant, and novel, shift in mens rea doctrine by treating the potential for disproportionately severe punishment as an independent justification for heightened mens rea requirements. This long-overdue doctrinal move makes perfect sense because punishment without culpability and excessive punishment involve the same objectionable feature: the imposition of morally undeserved punishment.

This Article uses Elonis as a vehicle for reexamining the effectiveness of current mens rea doctrine. Even after Elonis, mens rea doctrine remains hobbled by several methodological flaws which prevent it from making moral culpability a necessary precondition for punishment. These flaws, I argue, are traceable to the doctrine’s simultaneous embrace of two irreconcilable views of the separation of powers in criminal law. The project of reading implied mens rea requirements into statutes and fleshing out incomplete legislative crime definitions necessarily assumes that courts have a lawmaking role on par with Congress. The mens rea selection methodology, however, reflects standard faithful-agent textualism. This turns out to be the doctrine’s Achilles heel because the risk of morally undeserved punishment stems primarily from poor legislative crime definition.

To be truly effective, mens rea doctrine must operate outside the statutory definition of the offense. All mens rea options not clearly foreclosed by Congresseven knowledge of criminalitymust be available wherever needed to prevent morally undeserved punishment. Until this occurs, mens rea doctrine will continue to default on its promise of preventing conviction for morally blameless conduct, not to mention the broader promise, suggested both by Elonis and criminal law tradition and theory, of precluding disproportionately severe punishment.

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California’s New Law Will Fail to Address the Larger Problem of Brady Violations

Christina E. Urhausen

Volume 69, Issue 6, 1673-1694

Brady violations have become a growing epidemic in California. As a result, California recently enacted a new law that amends section 141 of the Penal Code. The law changes the status of an “intentional” Brady violation from a misdemeanor to a felony, and imposes up to three years of prison time for those found guilty. This Note argues that this new law will fail to address the systematic problem of Brady violations. Part I discusses the legal history of the Brady decision and its progeny, as well as the shortcomings of the Brady rule. Part II explores the pervasiveness of Brady violations in California specifically. Part III explains why current safeguards are insufficient to control the problem. Part IV argues that California’s new law will have little to no effect in reducing the number of Brady violations in California. Finally, Part V proposes alternative reforms that would address the fundamental problems that lead to Brady violations.

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