Comment

The Free Exercise Clause is a broadly worded constitutional prohibition against government intrusion on religious exercise. To construct limits, courts have consistently required government officials to demonstrate the necessity of state action burdening religion. Yet government officials regularly fail to produce evidence of necessity, leaving judges to intuit or assume whether necessity exists. In this Comment, Brady Earley offers a better way. Using a method known as difference-in-differences (DiD), lawmakers can draw upon the experience of existing state laws to enact laws justified with evidence. The Comment demonstrates the value of DiD with a current free exercise controversy involving the Old Order Amish and their objection to Ohio’s flashing light requirement for buggies. Applying DiD to this conflict reveals that Ohio’s buggy light law led to an estimated 23% reduction in buggy-related crashes compared to Michigan and Kentucky—states with less restrictive buggy requirements. Beyond this case study, the Comment also discusses how DiD can help address recent Supreme Court conflicts over tax exemptions for religious organizations, LGBTQ-themed books in schools, and religious charter schools. These examples grapple with the problems and the showcase the possibilities of a data-driven method to address necessity in free exercise.

Complete preemption is a jurisdictional doctrine in which a federal statute so wholly envelops certain state law claims that those claims effectively cease to exist. Aside from an explicit complete preemption hook, the Supreme Court has recognized just one way for a federal statute to completely preempt state law claims: it must provide an exclusive federal remedy and also have a special nature that makes it extra federal. In this Comment, Ryan Jain-Liu tracks the historical evolution of U.S. bankruptcy to make this second showing. In doing so, this Comment observes two entwined trends in the history of U.S. bankruptcy: bankruptcy simultaneously became more remedial—and thus more voluntary—as the federal government asserted increased control over bankruptcy law. The dual developments toward bankruptcy-as-remedy and bankruptcy-as-federal combine to provide involuntary debtors special protection and to give involuntary bankruptcy a special federal nature. Finally, this Comment expands on the case study of involuntary bankruptcy to argue that historical evolution can form the basis for recognizing an area of law’s special federal nature and support application of the complete preemption doctrine to novel contexts.

In this Comment, Zoë Lewis Ewing evaluates the implementation of the Domestic Violence Survivors Justice Act (DVSJA), a New York law passed in 2019 to provide shortened sentencing ranges for domestic violence survivors convicted of crimes. It identifies an inconsistency in sentencing courts’ application of the law’s causation standard, which requires that a petitioner’s experience of domestic violence be a “significant contributing factor” to their criminal conduct. Some courts interpret the prong narrowly, while others apply a broad causation standard. This Comment argues that courts should opt for the latter approach and consider causation in the DVSJA satisfied if domestic violence was “sufficiently significant to have likely helped bring about the criminal conduct.”

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Supreme Court held that the Takings Clause applies to the judiciary as it does to any government actor. In the more than fifteen years since, none of the sixty courts to consider judicial takings claims have found a judicial taking. In this Comment, Coby Goldberg provides the only comprehensive analysis of the judicial takings caselaw since Stop the Beach, in order to determine why no court has found a judicial taking. Based on this analysis of the caselaw, this Comment suggests that finding a judicial taking is all but impossible. That conclusion does not mean that judicial takings doctrine has had no influence on property jurisprudence in the years since Stop the Beach, however. This Comment identifies three cases in which state courts have used the possibility of judicial takings as reasons not to make decisions that undercut property rights. In those cases, judicial takings doctrine is functioning as something akin to a canon of constitutional avoidance. If decided the other way, none of those three decisions would have avoided actions that would have amounted to judicial takings. This Comment thus concludes that judicial takings doctrine leads to worse outcomes in property law, and so, out of a concern for constitutional problems that never arise, courts reject decisions they would otherwise adopt.

The Fair Housing Act (FHA) makes it unlawful to deny people with disabilities “reasonable accommodations.” But courts have long split over how to interpret this provision. At the center of the divide is the statutory requirement that an accommodation be “necessary to afford . . . equal opportunity to use and enjoy a dwelling.” Some courts interpret this language to impose a strict-necessity standard, requiring that an accommodation be truly indispensable. Other circuits instead read the statute as imposing a lenient-necessity standard, requiring only that the requested accommodation ameliorate the plaintiff’s disability. Rather than pick one interpretation, this Comment suggests that courts should tailor the necessity standard they employ to the type of case that is brought. Analyzing the text of the statute, Ben Griswold argues that the term “use and enjoy” invokes common law property ideas that should inform the interpretation of the reasonable accommodation provision. This textual analysis indicates that courts should apply a lenient-necessity requirement to cases brought by housing occupants requesting a specific accommodation, but should apply a strict-necessity requirement in cases brought by developers seeking zoning variances. Further, this interpretation addresses important information asymmetries, enabling courts to more optimally select for societally beneficial accommodations.

In this Comment, Sabrina Huang argues that courts should eliminate the subjective malice requirement for Fourth Amendment malicious prosecution claims. She draws on other constitutional torts that arise during encounters with actors in the criminal justice system to show that a plaintiff-friendly objective standard is more appropriate than a subjective standard. If courts are unwilling to eliminate the malice requirement, the Comment proposes an alternative to the requirement: a burden-shifting test. The intended effects of both proposals are to expand relief to more litigants across jurisdictions, harmonize Fourth Amendment jurisprudence, and deter police and prosecutorial misconduct.

Holders of patents covering technology standards, known as standard-essential patents (SEP), control the rights to an invention with no commercially-viable alternative or that cannot be designed around while still complying with a standard. This gives SEP holders significant leverage in licensing negotiations. Standards development organizations (SDOs) play an important role in curbing opportunistic behavior by patent holders. SDOs require SEP holders to license their patents on fair, reasonable, and non-discriminatory (FRAND) terms. However, courts have mischaracterized FRAND commitments, concluding that these disputes carry a Seventh Amendment guarantee to a jury trial. This mischaracterization undermines the fair resolution of FRAND disputes, and a different approach is necessary. In this Comment, Marta Krason proposes an alternative analytical framework that more accurately characterizes FRAND disputes by drawing on principles from contract and property law, concluding that the constitutionally proper adjudicator is a judge, not a jury.

The internet plays a crucial role in modern life; however, equal access to it is not guaranteed. Drawing on existing tribal spectrum sovereignty arguments, Morgan Schaack writes that the control exercised by the FCC’s licensing of the electromagnetic spectrum and language common in many tribal treaties create a tribal access right to spectrum under the trust responsibility. Framing this access to spectrum as a trust-protected resource, the Comment situates allowing tiered internet service in the absence of net neutrality as a violation of the government's obligations under the trust responsibility.

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."

Recently, many states have reacted to the growing data economy by passing data privacy statutes. These follow the “interaction model”: they allow consumers to exercise privacy rights against firms by directly interacting with them. But data brokers, firms that buy and sell data for consumers whom they do not directly interact with, are key players in the data economy. How is a consumer meant to exercise their rights against a broker with an “interaction gap” between them?

A handful of states have tried to soften the interaction gap by enacting data-broker-specific legislation under the “transparency model.” These laws, among other things, require brokers to publicly disclose themselves in state registries. The theory is that consumers would exercise their rights against brokers if they knew of the brokers’ existence. California recently went further with the Delete Act, providing consumers data-broker-specific privacy rights.

Assembling brokers’ reported privacy request metrics, this Comment performs an empirical analysis of the transparency model’s efficacy. These findings demonstrate that the transparency model does not effectively facilitate consumers in following through on their expected privacy preferences or meaningfully impacting brokers. Therefore, regulators should follow in the footsteps of the Delete Act and move beyond the transparency model.