Comment

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.

The latest development in class action litigation is the “future stakes settlement.” Under this novel mechanism, unveiled in the settlement proposal to end a privacy law class action lawsuit against the startup Clearview AI, a defendant grants a privately traded equity stake to the class in exchange for a release of all claims.

Future stakes settlements, though similar to existing mechanisms in class action and bankruptcy law, offer distinct benefits and costs. Through a future stakes settlement, the class may recover against a cashless defendant and receive a larger payout than would be possible through a traditional cash damages fund. But this recovery is uncertain, as the value of a future stake can fluctuate. Furthermore, by transforming injured parties into shareholders, future stakes settlements pose serious moral quandaries.

Existing guidance for settlement agreements under Federal Rule of Civil Procedure 23(e) is insufficient to handle the high degree of risk associated with future stakes settlements. This Comment recommends additional standards that courts should apply when evaluating these settlements. Through these additions, courts can prevent defendant gamesmanship, ensure future stakes settlements are fair to the class, and fulfill the dual purposes of compensation and regulation in class actions.

Everyone owes each other a duty of ordinary care—but what is “ordinary”? How does one act reasonably to meet this burden? This Comment analyzes the current reasonable person standard for disabled plaintiffs and the corresponding duty of “ordinary care” provided by defendants through a critical disability studies lens. The current system of tort law burdens disabled plaintiffs with accommodating themselves, rather than requiring defendants to include accessible care in meeting their duty of ordinary care. To make the distribution of accommodative labor more equitable, this Comment proposes three stackable changes: (1) courts should reinterpret defendants’ duty of ordinary care to include care of individuals with disabilities by eliminating the doctrine that tortfeasors owe accommodations to people with disabilities only if they are on notice of their disabilities; (2) courts could further shift the balance of accommodative labor by factoring the mental and physical cost of accommodating oneself into the reasonable care inquiry when the plaintiff is disabled; and (3) courts could eliminate comparative negligence for plaintiffs with disabilities to address the problematic “reasonable person with a disability” standard. This Comment also explores theoretical, doctrinal, and normative justifications while creating space for a more robust dialogue on how the law treats disability as “extra”—but not ordinary.

Anti-fat bias has been described as the last socially acceptable form of prejudice. Despite the discrimination that fat people face, there is no federal protection against weight discrimination. One potential solution to the lack of existing legal protections is the Americans with Disabilities Act (ADA). Claims challenging weight discrimination under the ADA argue that weight discrimination is a form of disability discrimination that is based on the medical condition of obesity. Yet, courts have resisted granting the ADA’s protections to obese plaintiffs.

This Comment argues that courts should recognize obesity as an ADA-protected disability, even in circuits that have restricted obesity-as-a-disability ADA claims to cases where a plaintiff can show that their obesity is related to a physiological disorder. The author draws parallels between obesity and gender dysphoria to highlight courts’ recent willingness to extend the ADA’s protection to highly stigmatized clinical conditions when a diagnosis has gained credibility in the medical community and evidence suggests that the condition has a physiological cause.

When a municipality takes property, the former owners can allege a violation of the Takings Clause and try to recover just compensation. But what should happen when the municipality goes broke and enters municipal bankruptcy? Can the municipal bankruptcy code empower judges to release municipalities from their obligation to pay just compensation through a discharge? Or does the Takings Clause provide special constitutional protection to claims for just compensation from a municipality that immunizes the claims from discharge? This issue has played out in municipal bankruptcies in Detroit, Michigan; Stockton, California; and Puerto Rico—where courts are deeply divided on the right approach, resulting in a live circuit split. This Comment provides the first comprehensive analysis that shows takings claims are constitutionally dischargeable. As a threshold matter, the Comment shows that formalist considerations do not require immunizing takings claims from discharge. The Comment then shows that making takings claims dischargeable follows best from the original design of the Takings Clause given the host of procedural and political safeguards within municipal bankruptcy that would protect takings claimants against abuse. Lastly, the Comment shows that making takings claims dischargeable is normatively good.

This Comment analyzes the entrance of institutional investors into the single-family rental market after the Great Recession of 2008. The collapse of the housing market during the Great Recession fundamentally changed the ownership structure of U.S. single-family homes. This post-recession reality has introduced a housing puzzle: the pricing trends of single-family rentals in the decade after the Great Recession suggest that institutional investors have captured monopolistic power over the single-family rental market despite owning a relatively small market share. Thus, this Comment evaluates the housing puzzle through the lens of antitrust law.

While a potential antitrust case appears to suffer from the critical weaknesses of low entry barriers and market shares, analyzing the institutional entrance into the single-family rental market under antitrust merger doctrine reveals that the case is stronger than it may initially seem. After evaluating the antitrust case, this Comment considers how the housing market can instruct antitrust doctrine’s further evolution, since commentators across academia, the media, and politics all criticize institutional entrance. By highlighting how unique market facts in housing obfuscate market power, this Comment suggests expanding the merger analysis to include not just levels and changes in concentration, but also orders of magnitude.