94 Texas L. Rev. 205
The third party doctrine permits the government to collect consumer records without implicating the Fourth Amendment. The doctrine strains the reasoning of all possible conceptions of the Fourth Amendment and is destined for reform. So far, scholars and jurists have advanced proposals using a cramped analytical model that attempts to balance privacy and security. They fail to account for the filterability of data. Filtering can simultaneously expand law enforcement access to relevant information while reducing access to irrelevant information. Thus, existing proposals will distort criminal justice by denying police a resource that can cabin discretion, increase distributional fairness, and exculpate the wrongly accused.
In this Article, Jane Bambauer offers the first comprehensive analysis of third party data in police investigations by considering interests beyond privacy and security. First, it shows how existing proposals to require suspicion or a warrant will inadvertently conflict with other constitutional values, including equal protection, the First Amendment, and the due process rights of the innocent. Then it offers surgical reforms that address the most problematic applications of the doctrine: suspect-driven data collection, and bulk data collection. Well-designed reforms to the third party doctrine will shut down the data collection practices that most seriously offend civil liberties without impeding valuable, liberty-enhancing innovations in policing.
Christopher R. Leslie
94 Texas L. Rev. 265
Arbitration clauses have become ubiquitous. Arbitration clauses require consumers and employees to waive their rights to bring litigation in court, leaving private arbitration as their only avenue to seek redress for violations of any law, including consumer protection laws, antitrust law, and anti-discrimination laws. The arbitration process is less protective of consumers and employees in many ways than the litigation process in public courts. Yet for consumers in many markets, arbitration clauses are unavoidable because firms impose contracts of adhesion that include mandatory arbitration clauses, which require individuals to waive their rights to sue in court.
As the Supreme Court has expanded the categories of legal claims that are subject to mandatory arbitration, firms have begun to load their mandatory arbitration clauses with unconscionable contract terms. This is arbitration bootstrapping—firms inserting terms unrelated to arbitration into an arbitration clause in the hopes that judges will be more likely to enforce those terms.
In the wake of the Supreme Court’s decisions in Concepcion and Italian Colors, judged who have upheld anti-consumer terms in arbitration clauses claim to be merely implementing the will of Congress. Yet the senators and representatives who voted for the Federal Arbitration Act would not recognize today’s arbitration clauses that courts are enforcing in the name of the 1925 Congress. This Article examines the legislative history of the Federal Arbitration Act to show that the enforcement of current arbitration clauses, both as to their reach and their content, is inconsistent with the purpose and the text of the Federal Arbitration Act.
William W. Berry III
94 Texas L. Rev. 331
In his recent book, Just Mercy: A Story of Justice and Redemption, Alabama Equal Justice Initiative lawyer Bryan Stevenson describes the challenges and struggles of representing indigent individuals accused of serious crimes. In this book review, Professor Berry describes Stevenson’s book, highlighting the principles of just mercy latent in his narrative and their connection to the individualized consideration of criminal offenders. He then shifts to argue that many of the current shortcomings of the criminal justice system result directly from stigmatizing alleged offenders rather than considering them individually as people possessing human dignity. Finally, he outlines a series of criminal justice reforms drawn from Stevenson’s experiences and the concepts of individualized consideration that emerge from pursuing just mercy.
94 Texas L. Rev. 353
“Invisible Women: Mass Incarceration’s Forgotten Casualties” is a review of Alice Goffman’s On the Run: Fugitive Life in an American City (The University of Chicago Press, 2014) and James Jacobs’ The Eternal Criminal Record (Harvard University Press, 2015). It examines the lack of critical discussion of the impact that the criminal justice system has on women contained in Goffman’s On the Run. In this Review Essay, Professor Goodwin argues that women are often overlooked as victims of the war on drugs and a broken system of law enforcement and mass incarceration. She then examines Jacobs’ The Eternal Criminal Record to look at the collateral damage caused to women, children, and families as a result of felony disenfranchisement, loss of housing, and loss of parental custody.
Camille Gear Rich
94 Texas L. Rev. 387
Professors Cahn’s and Carbon’s book Marriage Markets is a nuanced account of the ways coupling and family formation spur wealth inequality and therefore is a welcome addition to their family law corpus. Professor Rich reframes Marriage Markets using tools from economic theory and masculinity studies to surface the gender story within the class account provided in the book. She begins by documenting the emergence of the female marriage market consumer and the consequences of this development, and then considers whether marriage must change or masculinity must change in order to spur contemporary long term coupling in working class and poor communities. She argues that the key to incentivizing the female marriage market consumer to commit is by developing marriage models that minimize women’s economic risk, and maximize their access to economic resources in extended kinship networks. Once this change is made new structures and policy options emerge.
William R. Langley
94 Texas L. Rev. 425
Commercial wind power generation is still, in many ways, an emerging technology. These few decades have provided little time to generate the laws, regulations, and judicial decisions that define other sectors of the energy industry. We still lack definitive answers to questions of property rights associated with wind generation and environmental impacts. Already, those questions are evolving, and advances in technology may radically alter the landscape. In this Note, William Langley discusses some of the legal issues that may be implicated by the introduction of a new technology: airborne wind energy.