Law Commons^™

Outsourcing Privacy, Ari Ezra Waldman

Notre Dame Law Review Reflection

An underappreciated part of the narrative of privacy managerialism—and the focus of this Essay—is the information industry’s increasing tendency to outsource privacy compliance responsibilities to technology vendors. In the last three years alone, the International Association of Privacy Professionals (IAPP) has identified more than 250 companies in the privacy technology vendor market. These companies market their products as tools to help companies comply with new privacy laws like the General Data Protection Regulation (GDPR), with consent orders from the Federal Trade Commission (FTC), and with other privacy rules from around the world. They do so by building compliance templates, pre-completed …

Incidental Burdens On First Amendment Freedoms, Charles F. Capps

Notre Dame Law Review Reflection

The Supreme Court is currently reconsidering the question when, if ever, the Free Exercise Clause requires exemptions to neutral laws of general applicability. This Essay proposes an answer that is based on the idea—which this Essay labels the “Principle of Consistency”—that the First Amendment requires comparable levels of protection for speech and religious exercise. Other scholars applying the Principle of Consistency have discussed the implications of United States v. O’Brien, which prescribed intermediate scrutiny for incidental burdens on speech, for the problem of exemptions under the Free Exercise Clause. But no one has discussed the implications of two lines …

Introduction, Mark P. Mckenna

Notre Dame Law Review Reflection

Julie Cohen’s Between Truth and Power is, as Orly Lobel writes, a “dazzling tour de force” that “asks us to consider the new ways powerful actors extract valuable resources for gain and dominance.” As she has done so frequently, Cohen takes an incredibly complex story and weaves together a comprehensive narrative that changes the entire framing of legal questions. Agree or disagree with her diagnoses, no one who seriously engages this book will ever think about regulation in the information economy the same way.

In January 2020 (seemingly a lifetime ago, given what 2020 would bring), we gathered leading thinkers …

Cultural Heritage Law Between Truth And Power: Law's Evolution And Our Collective Cultural Interest In An Informational Economy, Felicia Caponigri Jd, Phd

Notre Dame Law Review Reflection

Julie Cohen’s book, Between Truth and Power, analyzes our shift to an informational economy, the increasing presence of networked infrastructures that contest our traditional rule-of-law framework, and the important role transnational governance institutions play in this context. As subject-matter examples of the shift to an informational economy, Cohen spotlights labor, land, and money and inspires us to think about how tangible goods have become dematerialized and intangible and then reified again as information and how legal entitlements shape our complex interactions with these newly complex properties. Taking inspiration from Cohen’s spotlight on labor, land, and money, this Essay proposes …

Biopolitical Opportunities: Between Datafication And Governance, Orly Lobel

Notre Dame Law Review Reflection

Julie Cohen’s dazzling tour de force Between Truth and Power asks us to consider the new ways powerful actors extract valuable resources for gain and dominance. Cohen in particular warns that “the universe of personal data as a commons [is] ripe for exploitation.” Cohen writes that “if protections against discrimination, fraud, manipulation, and election interference are to be preserved in the era of infoglut, regulators will need to engage more directly with practices of data-driven, algorithmic intermediation and their uses and abuses.” I read Between Truth and Power as not only a compelling account of the contemporary transformations of law …

Counting Heads: The Decennial Census And Adjustments To Enumeration, Jay E. Town

Notre Dame Law Review Reflection

The 2020 Decennial Census has become a lightning rod for litigious civil rights organizations, state attorneys general, and even members of Congress. At stake is the apportionment of representatives in the House of Representatives and the Electoral College divided amongst the several states. Furthermore, the “headcount” determines the allotment of $1.5 trillion in nondiscretionary federal dollars to be distributed to the various states based on the persons who are counted in each. The headcount is also used in redistricting of congressional districts. Make no mistake, litigation surrounds the manner in which the census arrives at its headcount after every census. …

A Variable Number Of Cheers For Viewpoint-Based Regulations Of Speech, R. George Wright

Notre Dame Law Review Reflection

If there is one thing we think we know about the First Amendment, it is that speech restrictions based on viewpoint are especially objectionable. The Supreme Court has declared that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” For this proposition, the Court has on one occasion cited thirteen of its own precedents.

Much more broadly, the Court has also held that a government “has no power to restrict expression because of its message, its …

Sonner V. Premier Nutrition Corp., Ruth Dapper, Bryce Young

Notre Dame Law Review Reflection

When sitting in diversity jurisdiction, must a federal court apply federal equitable principles when deciding state law claims, even if state law may provide a different outcome? That was the question before the United States Court of Appeals for the Ninth Circuit in the case of Sonner v. Premier Nutrition Corp. Although the Ninth Circuit’s published opinion relies on “seventy-five years” of unchanged law, the opinion joins a long list of cases that continue to help clarify the tenets from Erie Railroad Co. v. Tompkins and inform the courts and practitioners on the relationship between state and federal authority …