Jan 5, 2024 Stacy-Ann ElvyTechnology Law
Schools increasingly use various technologies to monitor and collect information about students. The COVID-19 pandemic, which led to a large number of school closures and a transition to online learning, has also raised alarming questions about student privacy. For instance, virtual software used during remote exams to monitor students can scan students’ bedrooms, collect data from the microphones and cameras of students’ computers, and discern students’ keystrokes. In her article, The Private Life of Education, Professor Fanna Gamal makes a noteworthy contribution to scholarship in the privacy law and education law fields by highlighting embedded assumptions and significant shortcomings in privacy law governing student data. In doing so, she advances existing debates on the legal conception of information privacy. Gamal argues that student privacy laws’ immoderate focus on nondisclosure of students’ data outside of the school context fails to effectively consider the various ways in which schools can serve as the primary perpetrators of student privacy violations. She further contends that schools’ data practices may have disproportionate negative implications for members of historically marginalized groups, such as disabled and low-income students.
Gamal expertly critiques the provisions of the Family Educational Rights and Privacy Act (FERPA). She argues that FERPA’s excessive focus on the prohibition of data disclosures outside of schools spuriously assumes that schools should, by default, receive treatment as privacy protectors that act in the best interest of students’ privacy. Gamal aptly acknowledges that FERPA’s heavy reliance on non-disclosure is not unique to American privacy law. However, after unpacking the legal conception of student data privacy, Gamal goes on to convincingly argue that student data privacy law also assumes that students do not have a significant privacy interest in “data creation, collection and recording.” (P. 1319.) Continue reading "Centering Educational Institutions as Potential Sources of Student Privacy Violations"
Jan 4, 2024 Carol Necole BrownProperty
Danielle Stokes,
From Redlining to Greenlining, 71
UCLA L. Rev. __ (forthcoming, 2024) available at
SSRN (June 8, 2023).
I like circles, don’t ask me why. Maybe I like them because they make me think about how a few inches, feet, or yards can make a world of difference. If you enclose me in a circle, you may destine me for a lifetime (even generations) of disinvestment, lost opportunity, and lost hope. These are the vestiges of redlining, a historic process in which the federal government participated in racially segregated housing beginning in the 1930s by refusing to insure home mortgages in and near Black neighborhoods.
As I prepared to teach a housing law course this summer in Cambridge, England, I thought a lot about circles and in my research, I discovered Danielle Stokes’s recent article, From Redlining to Greenlining. The title of her article harkens to the old lending maps of the 1930s — the few inches on a map between green and red, blocks or miles on the ground, and untold lost opportunities or thwarted dreams for those enclosed in the thin red circle.
A red circle drawn around a neighborhood on a lender’s map signaled high lending risk and therefore an undesirable neighborhood. Place me on the outside of this thin red circle and my economic prospects (and my family’s prospects potentially for generations) are much improved. In fact, on these same color-coded maps, areas in green signified the lowest level of lending risk and were highly recommended for lending. They were also White, racially homogenous neighborhoods. Continue reading "“Draw Me a Circle” and Where You Place Me Makes All the Difference"
Jan 3, 2024 Sara MayeuxLegal History
On the day in 1853 when Franklin Pierce was inaugurated as president of the United States, his vice president, William Rufus King, took the oath of office remotely—from his sugar plantation in Cuba, where he was dying of tuberculosis. An Alabama cotton planter, King also owned an estate on the island and was resting there in the hopes (which proved futile) that the tropical air might cure him. As Ada Ferrer writes when recounting this anecdote in her awe-inspiring, Pulitzer Prize-winning work, Cuba: An American History: “The story of the inauguration of an American vice president in Cuba is unexpected” (P. 109).
I’ll say! As the holder of an advanced degree in U.S. history, I would like to think I know a little bit about the twists and turns of American designs on Cuba, but I must admit I did not know this story. As Ferrer goes on to explain, “the spectacle of an Alabama slaveholder taking office as vice president of the United States in the heart of Cuban sugar country” is not merely a fun piece of historical trivia but exemplifies just how intertwined the island and its northern neighbor have always been throughout their respective histories, initially through the economic system of slavery and also through the persistent dreams of prominent Americans that the United States might one day annex Cuba as a territory (Pp. 109-10). Continue reading "Insights for U.S. Law Professors in the History of Cuba"
Dec 21, 2023 A. Michael FroomkinJotwell
Jotwell is taking a short Winter break. Jotting should resume on Wednesday, Jan 3, 2024.
I and the Jotwell Student Editors — John Dennis, Nicole Fajardo, and Noah Gross — all wish our readers a happier 2024.
Jotwell carries no advertising, so we would very much appreciate it if you could make a small (or, if you wish, large!) holiday donation. The University of Miami School of Law is Jotwell’s host and main supporter, but having tangible signs that our readers value us is important. Even a few dollars, or the equivalent in your currency, can matter a great deal.
Thank you for reading, and for your support.
Michael Froomkin
Jotwell Editor in Chief
Dec 20, 2023 Anita KrishnakumarLexLegislation
Jesse M. Cross,
The Fair Notice Fiction, 75
Ala. L. Rev. __ (2023) available at
SSRN (April 21, 2023).
In The Fair Notice Fiction, Professor Jesse Cross provides a much-needed deep dive into one of modern textualism’s core tenets—that giving statutes their ordinary meaning puts people on notice about their legal obligations and therefore promotes the rule of law value of fair notice to the public. The claim to promote fair notice is one that textualism long has asserted, but it has taken on a new importance in the last few years as textualist Justices have come to dominate the modern Court and to loudly proclaim their commitment to identifying a statute’s “original public meaning.”
The Fair Notice Fiction seeks to debunk this core textualist justification. Professor Cross’ central critique is that the idea of providing fair notice to the public through statutory text has always been a fiction—for at least two reasons. First, in the modern era, the reading of statutory text is a “language game accessible only to legal elites.” (P. 1.) Second, throughout most of history, literacy has been low, texts have been scarce, and language barriers have abounded—even in those early democracies often touted as providing fair notice of statutory meaning to the public. Continue reading "Undermining the Fair Notice Rationale for Textualism"
Dec 19, 2023 Sean CoyleJurisprudence
This lively and concise article surveys aspects of the philosophy of corrective (classically, commutative) justice in the domain of the Law of Torts, specifically the law of negligence. It begins by outlining the central problem: that the lawyer’s concepts of equality, principle and right do not seem relatable to the moral concepts most readily attributive to citizens, those of virtue, value and good. In a beautiful analytical movement, the author demonstrates that such divisions are merely apparent, not real. In doing so, the article connects this theme to that of moral luck: the idea that we may not, in fact, be in control of the consequences of our action such, that it is, at least, problematic to ascribe legal responsibility to our negligent actions.
The idea is not new: it reaches back certainly to Aristotle’s treatment of virtue in the Nicomachean Ethics, where he observes that virtue is insufficient for happiness, for a person needs a degree of good fortune to ensure that their efforts are rewarded, and a cursed though virtuous person cannot be described as happy. This relates to the multiple possibilities within which each person moves, sometimes fortunately, sometimes not. The law of negligence represents an intervention into these situations, based not on the form of the will of the acting person, but on external freedom (borrowing terms from Kant). A few sentences are worth quoting in detail:
For corrective justice theorists, Kant’s idea of external freedom provides the normative foundation for the losses and gains that are the outcome of human interaction, and normatively grounds the restoration of these losses and gains. Because your movements and actions have undermined my choices, because in the exercise of your external freedom you have undermined mine, it is justifiable for the judge to restore this inequality and exercise coercion via the law. In other words, the illegitimate use of your force on me justifies law’s force on you. (P. 107.)
The law of negligence thus obliterates the problem of moral luck by suppressing it: it considers external freedom to be the only relevant issue facing the law, to the exclusion of the question of will. The law is essentially retrospective as it looks backward to what has already happened. Continue reading "Negligence and Civil Maturity"
Dec 18, 2023 Christophe GeigerIntellectual Property Law
As the first empirical evidence is published on the consequences of Generative AI systems on labor markets, broad anxiety is felt from creator communities on the effects of this technology on their income streams. Consequently, the question of how to deal with Generative AI from a copyright law perspective is gaining a lot of attention globally. Several lawsuits have been filed in the US by creators against AI operators and the first attempts to legislate that matter have already been introduced at the national level. The EU is currently finalizing an ambitious regulation package called the “AI Act” with important implications for its copyright regime, in particular the implementation of transparency obligations concerning copyright-protected works used to train the AI algorithms. In this context, Martin Senftleben’s new article Generative AI and Author Remuneration is particularly timely and proposes a very inspiring reflection on what could be the way forward regarding copyright reforms in this field.
One of Senftleben’s main concerns is to find a workable approach not to disincentivize AI innovation while at the same time creating new revenue streams for “flesh and blood authors” to secure remunerations that will improve their working and living conditions. Indeed, the starting point of the author is that:
the increasing sophistication of AI systems will inevitably disrupt the market for human literary and artistic works. Generative AI systems provide literary and artistic outputs much faster and cheaper. It is therefore foreseeable that human authors will be exposed to substitution effects. They may lose income as they are replaced by machines in sectors ranging from journalism and writing to music and visual arts. Continue reading "To Pay or Not to Pay (for Training Generative AI), That is the Question"
Dec 15, 2023 Rosalind DixonInternational & Comparative Law
Rarely has a book by a constitutional lawyer had such timeliness: Julie Suk’s monograph, After Misogyny: How the Law Fails Women and What to Do About It, talks about the ways in which women often do too much, and men too little, to sustain the life, work, and health of others.
In 2023, the same message is all around us. Anna Funder’s 2023 much lauded book, Wifedom: Mrs Orwell’s Invisible Life, tells the story of how George Orwell’s literary corpus was built on the back of the contributions of his wife, Eileen O’Shaughnessy, and yet those contributions were consistently minimized by Orwell himself and others writing about his work.
The new mini-series The Change, on the UK’s channel 4, gives a humorous though still highly pointed account of what Suk argues is core to misogyny, namely: the “overentitlement and overempowerment” of men compared to women. The protagonist of The Change, Linda, has spent decades carefully recording the amount of time she spends on household work (to the second), and when she turns 50, she decides that the lack of recognition of that work within the family calls for change, including a well-earned sabbatical from wifedom.
What distinguishes After Misogyny from these parallel accounts of sexism or misogyny is that Suk is a leading comparative constitutional scholar, and a central argument of the book is that constitutional norms offer an important resource in responding to this problem. Continue reading "Towards a Constitutionalism of Care"
Dec 14, 2023 Fred O. Smith, Jr.Courts Law
Federal judges, when deciding on separation-of-powers issues, are not neutral referees in our three-part federal system; they are participants in it. This key observation forms the foundation of Payvand Ahdout’s article. Expanding on this insight, Ahdout argues that in resolving disputes, federal judges frequently refrain from forcing high-ranking federal officials to perform specific actions. She terms this “separation-of-powers avoidance,” a strategy evident in various legal situations, including executive privilege and congressional power to issue subpoenas and file lawsuits. She identifies three categories of separation-of-powers avoidance: embedded avoidance, process avoidance, and fortified avoidance.
In the “embedded model,” courts approach and interpret legal doctrines with an emphasis on circumventing separation-of-powers conflicts. This approach is exemplified by the Supreme Court’s handling of a discovery dispute in Cheney v. U.S. District Court. An organization called Judicial Watch sued the Vice President Dick Cheney under the Federal Advisory Committee Act, seeking information about the newly formed National Energy Policy Development Group. The district court issued discovery orders requiring the Vice President and other high-ranking executive branch officials to disclose information about the group. But Cheney resisted. Without explicitly invoking executive privilege, he petitioned the D.C. Circuit for a writ of mandamus to stop the district court from requiring the disclosure. The D.C. Circuit ruled against Cheney, reasoning that the executive branch must assert executive privilege explicitly to protect itself from discovery. But the Supreme Court reversed, urging against needless constitutional confrontations between the branches. In so doing, it interpreted discovery requirements through the lens of separation-of-powers. Continue reading "Balancing Act: The Federal Judiciary as Both Arbiter and Participant Constitutional Structure"
Dec 13, 2023 Ann E. TweedyEquality
Jessica A. Shoemaker,
Re-Placing Property, 94
Univ. Chi. L. Rev. __ (forthcoming, 2024), available at
SSRN (Aug. 31, 2023).
In Re-Placing Property, Jessica A. Shoemaker demonstrates the extent to which our legal rules about property have allowed real property ownership to become, in many cases, paradoxically completely divorced from place attachment. Drawing from disciplines such as geography and sociology, Shoemaker defines “place attachment” as “a ‘sense of belonging, loyalty, or affection that a person feels for one or more places.’” (P. 15, quoting A Dictionary of Human Geography (Oxford 2013)). With real property increasingly owned by people who have little or no connection to the land itself, including absentee heirs and distant investors who often simply own shares of property through an investment fund, local communities bear the costs of these absentee owners’ choices. Consequently, early American ideals that, at least in theory, favored egalitarian access to ownership and that “reward[ed] productive improvement and agrarian stewardship,” (P. 4), are now being trampled to accommodate elitist ownership patterns that in some ways mirror feudalism. (Pp. 20, 60.)
Professor Shoemaker avoids romanticizing the past by highlighting the fact that “we tend to erase” Indigenous histories of land possession “in favor of a simplified story of American expansion . . . .” (P. 4.) Thus, Shoemaker is not using the past as it actually played out as a model so much as demonstrating that our traditional ideals of access to property ownership, however unevenly and unfairly applied in the past, are undermined by the modern reality that land is becoming increasingly commodified by the rich to the detriment of working-class and middle-class families and individuals, many of whom can no longer afford to buy homes or own farms because prices are being driven up—in some cases by distant investors, many of whom are foreign, and in other cases, particularly with respect to farms, because land is tied up in “hereditary family dynasties.” (P. 60.) Continue reading "Reorienting American Real Property to its Egalitarian Goals"
