Facial recognition technology (FRT) is a popular tool among police, who use it to identify suspects using photographs or still-images from videos. The technology is far from perfect. Recent studies highlight that many FRT systems are less effective at identifying people of color, women, older people, and children. These race, gender, and age biases arise because FRT is often “trained” using non-diverse faces. As a result, police have wrongfully arrested Black men based on mistaken FRT identifications. This Note explores the intersection of facial recognition technology and probable cause to arrest.

Courts rarely, if ever, examine FRT’s role in establishing probable cause. This Note suggests a framework for how courts can evaluate FRT and probable cause. Case law about drug-sniffing dogs provides a starting point for assessing what role an FRT identification should play in probable cause determinations. But drug dogs are not a perfect analogue for FRT. Two important differences between these two policing tools warrant treating FRT with greater scrutiny than drug dogs. First, FRT has baked-in racial, gender, and age biases that drug dogs lack. Second, FRT is a digital policing tool, which recent Supreme Court precedent suggests merits more judicial scrutiny than non-digital police tools like dogs.

Giving FRT a closer look leads to the conclusion that an FRT identification alone is insufficient to establish probable cause. FRT relies on flawed inputs (non-diverse data) that leads to flawed outputs (demographic discrepancies in misidentifications). These problematic inputs and outputs provide complimentary reasons why an FRT identification alone cannot provide probable cause.

The battle over worker classification between state governments, on the one hand, and gig economy companies, on the other, has raged since at least the first time someone ordered an Uber. Nowhere has this battle played out more prominently in recent years than in California. In 2019, the state legislature passed AB 5, a bill which adopted a stringent independent contractor standard and effectively classified all gig economy workers as employees of the companies whose apps they use to find work. AB 5’s ripple effects were enormous—the significant popularity of gig economy apps among consumers launched what might have been obscure, legalistic wrangling about worker classification standards to the forefront of the public consciousness. The bill’s passage engendered public outcry, legal challenges, media hysterics, and a record-breaking referendum initiative whose outcome is still the subject of litigation. In a sense, strong reactions to a bill like AB 5 are to be expected— worker classification schemes strike at the heart of individuals’ ability to earn income and to receive certain protections and benefits reserved only for employees. But largely missing from the fevered debate over AB 5 has been a close examination of the bill’s place in the long history of worker classification jurisprudence, its effectiveness as reform, and its viability to accomplish its own aims. This Note attempts to do just that and concludes that California AB 5 should not serve as a model for other states seeking to address the challenges the gig economy poses to existing worker classification schemes.

College sports generate approximately $8 billion each year for the National C[artel] Athletic Association and its member institutions. Most of this revenue flows from lucrative television broadcasting deals, which often incorporate the right to commercialize and sell the names, images, and likenesses of college athletes. Under its current revenue scheme, student-athletes—85 percent of whom live below the poverty line—receive a share of zero. For over a century, we’ve justified this exploitative distribution scheme under a cloak of student-athlete “amateurism.” Antitrust challenges to the NCAA’s amateurism rules clash with the assumption that “amateurism” is a revered tradition and an important tenet upholding the value and integrity of U.S. college sports. But is this true? Is amateurism in U.S. college sports such hallowed ground? And, if so, what values should animate the distinctions society values between collegiate and professional sports? Does it mean college athletes shouldn’t get paid?

This Article provides a descriptive and theoretical examination of the consumer justifications for amateurism in college sports under an antitrust framework. In general response to these inquiries, this Article finds that some consumer value exists in maintaining amateurism in college sports. However, amateurism’s uniqueness to American culture, and the values that should shape amateurism’s norms, stem from regional and institutional loyalty, athletic tradition, and the preparation and life skills gained from dual academic-athletic participation. Although competitive balance and fairness could be an animating factor, insufficient support for this position exists. This Article then theorizes that allowing name, image, and likeness (NIL) commercialization or “pay for play” would not impact those main animating factors and that student-athletes should be allowed as much pay for play as the consumer market would tolerate.

The Article then proposes pay for play and NIL commercialization schemes that more robustly incorporate not only consumer preference, but also moral, ethical, and equitable considerations, following the Supreme Court’s 2021 decision in NCAA v. Alston.

In recent years, the U.S. Supreme Court has repeatedly said that the doctrine of Article III standing deprives the federal courts of jurisdiction over some lawsuits involving intangible injuries. The lower federal courts are carrying out the Supreme Court’s instructions, and privacy injuries have borne the brunt of the Court’s directive. This Article identifies two incoherencies in the Court’s recent intangible injury decisions and builds on the work of privacy scholars to fashion a solution.

The first incoherency is a line-drawing problem: the Court has never explained why some intangible injuries create an Article III injury in fact while others do not. The second problem is more fundamental: the Court has never provided a justification for using counter-majoritarian constitutional standing to deprive plaintiffs of a remedy against companies engaged in abusive informational practices. These incoherencies have sparked much confusion in the lower courts and have invited curious arguments that the Constitution prohibits courts from adjudicating all but the narrowest sliver of privacy disputes.

To address the line-drawing and counter-majoritarian problems, this Article builds on Helen Nissenbaum’s contextual integrity framework. Contextual integrity observes that privacy is context specific and that privacy violations are the byproduct of practices that violate entrenched informational norms.

Constructing a legal framework based on contextual integrity solves both problems: contextual integrity provides courts with a principled way to distinguish between informational practices that are injurious and those that are not, and contextual integrity supplies courts with a persuasive justification for dismissing cases divorced from shared conceptions about abusive informational practices. The legal framework proves useful in understanding the statutes and circumstances that create justiciable privacy injuries.

It’s too late to undo all the havoc wreaked by the Court’s constitutional standing cases. This Article proposes a mechanism for cabining the doctrine’s most extreme implications and provides courts with a consistent and coherent way to protect privacy.

In times of crisis, including during the 2020–2021 global pandemic, the U.S. Securities and Exchange Commission (SEC) has engaged in a type of securities regulation that few scholars have acknowledged, let alone evaluated. Specifically, during recent market crises, the SEC adopted rules that are temporary, designed to help the securities markets and their participants—both public companies and public investment funds, such as mutual funds and ETFs—weather the crisis at hand but go no further. Once that goal has been accomplished, these rules usually expire, replaced by the permanent rules that they temporarily supplanted. Although the temporary-rulemaking endeavor is laudable—and arguably necessary for the sake of maintaining well-functioning markets in times of crisis—neither the SEC nor its observers have sufficiently acknowledged the meaningful risks that temporary rules might present to investors. At the same time, they have not appreciated the opportunities that temporary rules may create for furthering the cause of more effective regulation. This Article seeks to illuminate the potential and the pitfalls of temporary rules, thereby contributing to a better understanding of what is at stake when the SEC adopts them and what considerations should inform the agency’s rulemaking during future crises.

The recent expansion of the Patent Office’s power to invalidate issued patents raises a coordination problem when there is concurrent litigation, particularly where the federal courts have already upheld the patent’s validity. The Federal Circuit has concluded that Patent Office cancellation extinguishes litigation pending at any stage and requires vacating prior decisions in the case. This rule is widely criticized on doctrinal, policy, and separation of powers grounds. Yet the Federal Circuit has reached (almost) the right outcome, except for the wrong reasons. Both the Federal Circuit and its critics overlook that the Federal Circuit’s rule reflects a straightforward application of the justiciability limits on the power of the federal courts. Patent cancellation eliminates the exclusive rights that form the basis for the plaintiff’s suit, mooting the infringement case no matter how belated in the litigation. Courts typically vacate prior judgments and decisions when a pending case becomes moot, exactly as the Federal Circuit requires. Properly rooting the effects of Patent Office cancellation in mootness addresses critics’ doctrinal and policy concerns. It also demonstrates that critics’ separation of powers concerns are exactly backwards. The Federal Circuit’s rule is not a threat to the constitutional structure or the role of federal courts but rather a necessary result of Article III’s limits on federal judicial power. Courts and Congress each have potential ways to mitigate policy concerns from allowing Patent Office cancellation to trump litigation, while respecting mootness, but these ways introduce their own problems. Courts may have some discretion to decline to vacate prior judgments but doing so would have limited impact and could be an unwarranted departure from generally applicable procedural rules. Congress could limit the retroactive effect of patent cancellation, but this would be historically novel and raise its own policy concerns.

In recent years, increasing public and media attention has focused on hazing, especially in collegiate fraternities and sororities. Whether it is because of the deaths, major injuries, or litigation, both criminal and civil, collegiate fraternities and sororities have received increased scrutiny. In this Article, we explore a range of tactical considerations that lawyers must consider—from defenses to evidentiary concerns. We also explore how damages are contemplated in the context of hazing litigation.

Historically, 35 U.S.C. § 101, the statute governing patent eligible subject matter, has been construed broadly—with its legislative history indicating that it should cover “anything under the sun that is made by man.” The Supreme Court crafted three exceptions to § 101: (1) abstract ideas, (2) laws of nature, and (3) natural phenomena. In recent years, the Supreme Court’s eligibility jurisprudence has further narrowed § 101 to effectively exclude meritorious medical diagnostic methods. Indeed, since the Court’s decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc., the Federal Circuit has held every single diagnostic method claim brought before it patent ineligible.

This Note begins by discussing the merits of medical diagnostic tests and their relevance to modern precision medicine. It then dissects the Supreme Court’s decisions in Bilski v. Kappos and Mayo, highlighting the uncertainty regarding patent eligibility of medical diagnostic methods following these cases and the Federal Circuit’s application of the Court’s Alice/Mayo test. This uncertainty has rippled through the medical diagnostic and venture capital industries, sparking concerns about under-investment in diagnostic R&D.

The heart of this Note is an empirical study of venture capital investment in disease diagnostic technologies before and after Bilski and Mayo. Using a difference-in-difference methodology to analyze venture capital investment data from the PriceWater Clearinghouse Moneytree Tool, this Note examines whether current § 101 jurisprudence has caused these selective investors to decrease investment in companies developing medical diagnostics technologies that—in light of Mayo and its progeny—appear to be patent ineligible. Ultimately, the study indicates that in the four years following Mayo, investment in disease diagnostic technologies was nearly $9.3 billion dollars lower than it would have been absent Mayo.

This Note presents five key implications related to its central finding. First, the data supports the recent calls to Congress for reform of § 101. Second, it complements other key research regarding investment behavior following Mayo and Alice. Third, the data raises the question whether remaining innovation in the diagnostics space will be enough to support the precision medicine movement. Fourth, underinvestment in diagnostics and the discovery of disease biomarkers may lead to underinvestment in treatments. Lastly, this Note’s findings suggest that at least some venture capital firms employ greater caution when determining whether to invest in a company developing (or aiming to develop) diagnostics, which may spur hesitancy to form such companies in the first place.

As an empirical legal scholar, I am pleased to report that Sasha Hoyt has done what very few law students—and even many law professors—could achieve. She successfully conducted a novel empirical study to assess the real-world impact of a U.S. Supreme Court decision, Mayo Collaborative Services v. Prometheus Laboratories, Inc., on venture capital (VC) investment in startups and other companies that develop medical diagnostic technology.

As Ms. Hoyt notes, patent protection is particularly important for startup companies, as it can help protect their innovations from unauthorized use, attract funding and other investments, and foster collaboration with third parties. In the Mayo case, the Supreme Court made it extremely difficult for medical diagnostic companies to obtain patent protection for their technology, no matter how novel or useful it is. Using a sophisticated difference-in-difference methodology to evaluate the impact of the Supreme Court’s decision in Mayo on VC funding for medical diagnostic startups, Ms. Hoyt finds that medical diagnostics firms received almost $10 billion less in VC funding that they would have compared to other industries that were unaffected by the decision. And importantly, this result is statistically significant using an ordinary least squares (OLS) regression analysis. In short, Ms. Hoyt’s Note is a valuable contribution to the literature on patent eligibility and its impact on innovation, and policymakers should take note of her study.

I write to provide a few remarks concerning Sasha Hoyt’s illuminating work published in the pages of this journal. In it, Hoyt addresses the impact of the Supreme Court’s patent eligibility decisions on private investment in the development of medical diagnostic technologies. As an initial matter, I want to congratulate Hoyt for tackling an important topic. As Hoyt discusses, medical diagnostic technologies enable the diagnosis of diseases and other medical conditions such as genetic disorders, and early and accurate diagnosis may lead to early treatments and, ultimately, at least in some cases, saved lives. But the creation of medical diagnostic technologies often comes at great cost, and so a relevant question thus becomes how to fund the underlying work required to create these technologies. The two options up for consideration, broadly speaking, are private and public investment. Hoyt addresses the former by collecting and analyzing data to determine the role of utility patents—and in particular patent eligibility law—in supporting private investment. Given her analysis and conclusions, here I highlight the latter option, public investment.