A Historical Approach to Negligent Misrepresentation and Federal Rule of Civil Procedure 9(b)
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Thanks to Laura Appleman, Monica Bell, Tan Boston, Curtis Bradley, Emily Buss, Adam Chilton, Justin Driver, Jessica Eaglin, Sheldon Evans, Lee Fennell, James Forman, Cynthia Godsoe, Nyamagaga Gondwe, Bernard Harcourt, Hajin Kim, Brian Leiter, Aaron Littman, Jamelia Morgan, Renagh O’Leary, Farah Peterson, James Gray Pope, Eric Posner, Judith Resnik, Mara Revkin, Anna Roberts, Cristina Rodríguez, Jocelyn Simonson, Kate Skolnick, Fred Smith, Stephen Smith, David Strauss, I. India Thusi, Christopher Williams, and Quinn Yeargain for thoughtful comments and conversations, and the participants of The University of Chicago Faculty Workshop, Northwestern Faculty Workshop, Yale Public Law Workshop, CrimFest, Decarceration Workshop, and Criminal Justice Roundtable for their helpful engagement. Thanks also to the editors at The University of Chicago Law Review for their excellent editorial support. The author thanks the Paul H. Leffmann Fund for research support.
In recent years, many states passed constitutional amendments prohibiting modern day slavery in the form of forced prison labor allowed by the Thirteenth Amendment. However, the state amendments' text alone has not ended prison slavery in those states. This Article examines why. It grounds its discussion in the history of American slavery after the Civil War as well as the various attempts of legislation, litigation, and constitutional amendments to dismantle forced prison labor. Drawing on this discussion, it suggests how organizers might craft these amendments and how judges and lawyers should interpret them. It argues that, ultimately, amending constitutional text alone is not enough. To achieve their goals amendments must work in tandem with litigation, governmental structural reform, and the inevitable political battles that arise over the shape of the criminal legal system.
Thank you to Tyler Ashman and Liam Haffey for providing helpful feedback and assistance on this Case Note.
The Constitution’s Double Jeopardy Clause allows successive criminal prosecutions for the same conduct so long as they are pursued by separate sovereigns (such as two different states). This Case Note examines Illinois law to argue that state statutes are a useful, though imperfect, means of addressing the dual sovereignty doctrine. It argues further that the details of statutory language are highly consequential to whether states can scale back dual sovereignty in practice.
I would like to thank Jack Brake, Anne Marie Hawley, and Jonah Klausner for their thoughtful edits and Jake Holland for his indispensable advice all throughout the drafting process.
Illinois’s Biometric Information Privacy Act (BIPA) is the country’s most powerful law governing biometric data—data generated from an individual’s biological characteristics, like fingerprints and voiceprints. Over the past decade, BIPA garnered a reputation as an exceptionally plaintiff-friendly statute. But from 2023–2024, the Illinois legislature, Illinois Supreme Court, and Ninth Circuit Court of Appeals all sided with BIPA defendants for the first time. Most significantly, in Zellmer v. Meta Platforms, Inc., the Ninth Circuit dismissed the plaintiff’s BIPA claim because the face scan collected by the defendant could not be used to identify him.
It is unclear whether these developments represent a trend or an exception to BIPA’s plaintiff-friendliness. Which path is charted will largely turn on how courts interpret Zellmer: While Zellmer established that a biometric identifier must be able to identify an individual, lower courts have construed its holding narrowly to require that the entity collecting biometric data must itself be capable of identifying, rather than it being sufficient for any entity to do so. Reading BIPA this narrowly would significantly weaken the statute’s protections.
After detailing how employer and consumer cases catalyzed this recent defendant-friendly shift, this Comment proposes a two-step framework to determine whether a biometric identifier is able to identify, falling under BIPA’s reach. Given BIPA’s broad influence, where courts ultimately land on this question will be crucial to the protection of biometric data nationwide."