Digital Commons Network^™

The Promise And Perils Of Tech Whistleblowing, Hannah Bloch-Wehba

Northwestern University Law Review

Whistleblowers and leakers wield significant influence in technology law and policy. On topics ranging from cybersecurity to free speech, tech whistleblowers spur congressional hearings, motivate the introduction of legislation, and animate critical press coverage of tech firms. But while scholars and policymakers have long called for transparency and accountability in the tech sector, they have overlooked the significance of individual disclosures by industry insiders—workers, employees, and volunteers—who leak information that firms would prefer to keep private.

This Article offers an account of the rise and influence of tech whistleblowing. Radical information asymmetries pervade tech law and policy. Firms exercise near-complete …

I Want A New (Generic) Drug: A Comparative Case For Shifting U.S. Generic Drug Policies To Increase Availability And Lower Healthcare Costs, Immer S. Chriswell

Northwestern Journal of International Law & Business

Enacted in 1984, Hatch-Waxman was intended to increase generic drug availability and make critical healthcare more affordable for Americans. In the nearly forty years following, while it has increased availability of drugs, it has also allowed drug originators to create avenues to profit in ways not intended when the original compromise was struck, undermining its success. Moreover, given a weak antitrust standard against reverse settlement payments proscribed in Actavis, the U.S. faces a dilemma to further improve access to generic medications in the future. The E.U.’s approach to generic drugs, while presently geographically fragmented, is simpler and has a clear …

Defining Interim Storage Of Nuclear Waste, Max Johnson

Northwestern University Law Review

Nuclear power may be humanity’s best hope to curb climate-altering greenhouse gas emissions. But public fear of its dangers, including the toxicity of nuclear waste, undermines its expansion. To provide for more effective waste disposal, in 2021 and 2022 the Nuclear Regulatory Commission (NRC) recommended licensing two privately-owned nuclear waste storage facilities—called Consolidated Interim Storage Facilities (CISFs)—to be built in New Mexico and in Texas. Both states vehemently oppose the construction and operation of these facilities: legislators in both states have proposed state laws opposing them, and both states have sued the NRC challenging the legality of the facilities’ licensure. …

Information Privacy And The Inference Economy, Alicia Solow-Niederman

Northwestern University Law Review

Information privacy is in trouble. Contemporary information privacy protections emphasize individuals’ control over their own personal information. But machine learning, the leading form of artificial intelligence, facilitates an inference economy that pushes this protective approach past its breaking point. Machine learning provides pathways to use data and make probabilistic predictions—inferences—that are inadequately addressed by the current regime. For one, seemingly innocuous or irrelevant data can generate machine learning insights, making it impossible for an individual to anticipate what kinds of data warrant protection. Moreover, it is possible to aggregate myriad individuals’ data within machine learning models, identify patterns, and then …

Ownership Concentration: Lessons From Natural Resources, Vanessa Casado Pérez

Northwestern University Law Review

Concentration of ownership over land or other resources is both a sign and a cause of inequality. Concentration of ownership makes access to such resources difficult for those less powerful, and it can have negative effects on local communities that benefit from a more distributed ownership pattern. Such concentration goes against the antimonopoly principles behind the homesteading land policies and the legal regimes that regulate many natural resources. This Essay suggests that where concentration is a concern, one might draw lessons for reform by looking to the field of natural resources law, which employs a range of deconcentration mechanisms affecting …

Flint's Fight For Environmental Rights, Noah D. Hall

Northwestern University Law Review

This Essay reviews the recent development of environmental rights within U.S. constitutional law, advanced through a series of federal court decisions in the wake of the Flint water crisis. The residents of Flint were poisoned and lied to by their government for nearly two years. They experienced how American environmental governance has failed at the state and federal levels and how our environmental laws leave individuals and communities unprotected. And then Flint fought back, in the courts, for five years. Flint residents have been overwhelmingly successful, achieving some justice for themselves and advancing substantive rights and remedies within our constitutional …

Medical Necessity Of Residential Treatment For Anorexia: Can Parity Be Achieved?, Abbey Derechin

Northwestern Journal of Law & Social Policy

This Note examines the statutory landscape of mental health parity in the United States. The lens of this Note is through the mental illness of anorexia. Parity laws mandate analogous limitations between mental and physical illness. Therefore, because anorexia has many physical manifestations, it serves as a nice juxtaposition to physical illnesses. This Note will argue for broad interpretation of the Mental Health Parity and Addiction Equity Act (MHPAEA) through comparative analysis of counterpart statute, the California Mental Health Parity Act (CMHPA). It will explore how courts have interpreted the CMHPA broadly to suggest that the MHPAEA should be interpreted …

The Case Against Prosecuting Refugees, Evan J. Criddle

Northwestern University Law Review

Within the past several years, the U.S. Department of Justice has pledged to prosecute asylum-seekers who enter the United States outside an official port of entry without inspection. This practice has contributed to mass incarceration and family separation at the U.S.–Mexico border, and it has prevented bona fide refugees from accessing relief in immigration court. Yet, federal judges have taken refugee prosecution in stride, assuming that refugees, like other foreign migrants, are subject to the full force of American criminal justice if they skirt domestic border controls. This assumption is gravely mistaken.

This Article shows that Congress has not authorized …

Debt Bondage: How Private Collection Agencies Keep The Formerly Incarcerated Tethered To The Criminal Justice System, Bryan L. Adamson

Northwestern Journal of Law & Social Policy

This Article examines the constitutionality of statutes which allow courts to transfer outstanding legal financial obligations to private debt collection agencies. In Washington State, the clerk of courts can transfer the legal financial obligation of a formerly incarcerated person if he or she is only thirty days late making a payment. Upon transfer, the debt collection agencies can assess a “collection fee” of up to 50% of the first $100.000 of the unpaid legal financial obligation, and up to 35% of the unpaid debt over $100,000. This fee becomes part of the LFO debt imposed at sentencing, and like that …

Environmental Justice In Little Village: A Case For Reforming Chicago’S Zoning Law, Charles Isaacs

Northwestern Journal of Law & Social Policy

Chicago’s Little Village community bears the heavy burden of environmental injustice and racism. The residents are mostly immigrants and people of color who live with low levels of income, limited access to healthcare, and disproportionate levels of dangerous air pollution. Before its retirement, Little Village’s Crawford coal-burning power plant was the lead source of air pollution, contributing to 41 deaths, 550 emergency room visits, and 2,800 asthma attacks per year. After the plant’s retirement, community members wanted a say on the future use of the lot, only to be closed out when a corporation, Hilco Redevelopment Partners, bought the lot …

Screened Out Of Housing: The Impact Of Misleading Tenant Screening Reports And The Potential For Criminal Expungement As A Model For Effectively Sealing Evictions, Katelyn Polk

Northwestern Journal of Law & Social Policy

Having an eviction record “blacklists” tenants from finding future housing. Even renters with mere eviction filings—not eviction orders—on their records face the harsh collateral consequences of eviction. This Note argues that eviction records should be sealed at filing and only released into the public record if a landlord prevails in court. Juvenile record expungement mechanisms in Illinois serve as a model for one way to protect people with eviction records. Recent updates to the Illinois juvenile expungement process provided for the automatic expungement of certain records and strengthened the confidentiality protections of juvenile records. Illinois protects juvenile records because it …

From The Spirit Of The Federalist Papers To The End Of Legitimacy: Reflections On Gundy V. United States, J. Benton Heath

Northwestern University Law Review

The revival of the nondelegation doctrine, foreshadowed last term in Gundy v. United States, signals the end of a distinctive style of legal and political thought. The doctrine’s apparent demise after the 1930s facilitated the development of a methodological approach that embodied what Lon Fuller once called “the spirit of the Federalist Papers”: an open-ended engagement with the problem of designing democracy and controlling public power. At its best, this discourse was critical and propulsive, with each purported solution generating more questions than it answered. The turn against congressional delegations will likely bring to a close this period of …

Stepping Into The Shoes Of The Department Of Justice: The Unusual, Necessary, And Hopeful Path The Illinois Attorney General Took To Require Police Reform In Chicago, Lisa Madigan, Cara Hendrickson, Karyn L. Bass Ehler

Northwestern Journal of Law & Social Policy

No abstract provided.

Families Belong Together: The Path To Family Sanctity In Public Housing, Mckayla Stokes

Northwestern Journal of Law & Social Policy

In its 2015 landmark civil rights decision in Obergefell v. Hodges, the Supreme Court finally held that the Equal Protection and Due Process Clauses of the United States Constitution guarantee same-sex couples’ marital equality. The Court’s unprecedented declaration that the right to marry is a fundamental right under the Due Process Clause strengthened married couples’ right to privacy because it subjects government actions infringing on marital unions to heightened scrutiny. The Supreme Court has the option to minimize the impact of Obergefell by interpreting the right to marriage very narrowly—as only encompassing the right to enter into a state-recognized union …

The Pursuit Of Comprehensive Education Funding Reform Via Litigation, Lisa Scruggs

Northwestern Journal of Law & Social Policy

No abstract provided.

Panel Discussion: The Right To Education: With Liberty, Justice, And Education For All?

Northwestern Journal of Law & Social Policy

No abstract provided.

A Class Action Lawsuit For The Right To A Minimum Education In Detroit, Carter G. Phillips

Northwestern Journal of Law & Social Policy

No abstract provided.

Private Prisons, Private Governance: Essay On Developments In Private-Sector Resistance To Privatized Immigration Detention, Danielle C. Jefferis

Northwestern Journal of Law & Social Policy

No abstract provided.

Children Of A Lesser God: Reconceptualizing Race In Immigration Law, Sarah L. Hamilton-Jiang

Northwestern Journal of Law & Social Policy

The increased public exposure to the experiences of Latinx unaccompanied children seeking entry at the United States southern border has revealed the lived reality of the nation’s pernicious immigration laws. The harrowing experiences of unaccompanied children are amplified by their interaction with a legal system plagued by a legacy of systemic racism and sustained racial caste. While immigration law currently affords minimal legal protections for these children, in application, the law continues to fall egregiously short of providing for the safety of unaccompanied children. Though critics have long attested to the legal system’s neglect of unaccompanied children, subsequent legal analysis …

Swamp Money: The Opportunity And Uncertainty Of Investing In Wetland Mitigation Banking, Elan L. Spanjer

Northwestern University Law Review

In recent years, the wetland mitigation banking program has emerged as a favored mechanism for protecting the nation’s aquatic resources while allowing for economically beneficial development projects to proceed. Mitigation banks generate wetland credits, which in turn can be sold at a profit to developers who need them to offset wetland impacts. The number of mitigation banks has grown significantly in recent years, and the market has seen an influx of institutional investment. However, investors face significant risks and uncertainty, and many prospective investors lack access to information about wetland credit prices—which are neither reported to the regulatory authorities nor …

Leveraging Social Science Expertise In Immigration Policymaking, Ming H. Chen

NULR Online

The longstanding uncertainty about how policymakers should grapple with social science demonstrating racism persists in the modern administrative state. This Essay examines the uses and misuses of social science and expertise in immigration policymaking. More specifically, it highlights three immigration policies that dismiss social scientific findings and expertise as part of presidential and agency decision-making: border control, crime control, and extreme vetting of refugees to prevent terrorism. The Essay claims that these rejections of expertise undermine both substantive and procedural protections for immigrants and undermine important functions of the administrative state as a curb on irrationality in policymaking. It concludes …

Agency Underenforcement As Reviewable Abdication, Jentry Lanza

Northwestern University Law Review

The Supreme Court held in 1985 that agency refusals to enforce are presumptively unreviewable under the Administrative Procedure Act. In doing so, the Court created an exception for when an agency has “consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” Courts and scholars have mostly interpreted this abdication exception as capturing only total nonenforcement, which is when an agency completely stops enforcing its statutory responsibilities. On the other hand, the D.C. Circuit allows review of all general enforcement policies, regardless of whether they implicate abdication—but rarely do …

Who Are You Calling Irrational?, Aneil Kovvali

Northwestern University Law Review

Nudges are interventions that encourage people to make particular choices by shaping the context in which the choices are made. These interventions can have major impacts because of quirks in the way that human beings process information. Cass Sunstein places nudges at the core of a regulatory philosophy of “libertarian paternalism,” which suggests that while the government should generally preserve the freedom of citizens to make their own choices, it should also intervene to improve on the choices it deems self-destructive. In Why Nudge?, Sunstein defends libertarian paternalism against John Stuart Mill’s Harm Principle, which holds that the government …

The Bayh–Dole Act & Public Rights In Federally Funded Inventions: Will The Agencies Ever Go Marching In?, Ryan Whalen

Northwestern University Law Review

For over thirty years, the Bayh–Dole Act has granted federal agencies the power to force the recipients of federal research funding to license the resulting inventions to third parties. Despite having this expansive power, no federal agency has ever seen fit to utilize it. This Note explores why Bayh–Dole march-in rights have never been used, and proposes reforms that would help ensure that, in the instances when they are most required, the public is able to access the inventions it bankrolled.

There have been five documented march-in petitions since the Bayh–Dole Act was passed into law. Each petition was dismissed …

Optimal Abuse Of Power, Adrian Vermeule

Northwestern University Law Review

I will argue that in the administrative state, in contrast to classical constitutional theory, the abuse of government power is not something to be strictly minimized, but rather optimized. An administrative regime will tolerate a predictable level of misrule, even abuse of power, as the inevitable byproduct of attaining other ends that are desirable overall.

There are three principal grounds for this claim. First, the architects of the modern administrative state were not only worried about misrule by governmental officials. They were equally worried about “private” misrule—misrule effected through the self-interested or self-serving behavior of economic actors wielding and abusing …

Public Regulation Of Private Enforcement: Empirical Analysis Of Doj Oversight Of Qui Tam Litigation Under The False Claims Act, David Freeman Engstrom

Northwestern University Law Review

In recent years, a growing chorus of commentators has called on Congress to vest agencies with litigation “gatekeeper” authority across a range of regulatory areas, from civil rights and antitrust to financial and securities regulation. Agencies, it is said, can rationalize private enforcement regimes through the power to evaluate lawsuits on a case-bycase basis, blocking bad cases, aiding good ones, and otherwise husbanding private enforcement capacity in ways that conserve scarce public resources for other uses. Yet there exists strikingly little theory or evidence on how agency gatekeeper authority might work in practice. This Article begins to fill that gap …

Regulating Cyber-Security, Nathan Alexander Sales

Northwestern University Law Review

The conventional wisdom is that this country’s privately owned critical infrastructure—banks, telecommunications networks, the power grid, and so on—is vulnerable to catastrophic cyber-attacks. The existing academic literature does not adequately grapple with this problem, however, because it conceives of cyber-security in unduly narrow terms: most scholars understand cyber-attacks as a problem of either the criminal law or the law of armed conflict. Cyber-security scholarship need not run in such established channels. This Article argues that, rather than thinking of private companies merely as potential victims of cyber-crimes or as possible targets in cyber-conflicts, we should think of them in administrative …

Evolutionary Due Process, Louis J. Virelli Iii

NULR Online

The issue of evolution instruction in American public schools is becoming increasingly complex, both legally and politically. Until recently, the controversy over whether and how to teach evolution in public school science classes has been singularly focused on the constitutional limits of government support for religion under the First Amendment’s Establishment Clause. Current measures in Louisiana and Texas, however, represent a shift toward a new “adjudicative model” for addressing questions of evolution instruction. This adjudicative model permits individual educators to treat evolution issues on a case-by-case basis, which, in turn, implicates a new constitutional issue in the evolution education debate: …

Can The Law Track Scientific Risk And Technological Innovation?: The Problem Of Regulatory Definitions And Nanotechnology, David A. Dana

Faculty Working Papers

The functioning of a regulatory regime often turns on what is defined to be included in the scope of regulation and what is defined to be outside. In constructing the definitions of what is regulated, two key challenges are to align the defintions with the risks that motivated the establishment of the regulatory regime and to build in dynamism into the defintions so that they adapt to changes in scientific understanding and technology. This Chapter of a forthcoming book from Cambridge University Press (David Dana, ed., The Nanotechnology Challenge), explores these challnegs in the context of nanotechnology.

Keeping The Label Out Of The Case, Pearson Bownas, Mark Herrmann

NULR Online

No abstract provided.