CAN FEDERATED LEARNING SOLVE AI’S DATA PRIVACY PROBLEM?: A LEGAL ANALYSIS

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52 Rutgers L. Rec. 252 (2025) | WestLaw | LexisNexis | PDF

The speed of development in Artificial Intelligence (AI) in recent years has been breathtaking. Yet this comes with its own set of problems.[1] One of these problems is that the current iteration of AI requires vast quantities of data for the training of AI systems, and, currently, the demand for data is outstripping the supply of data.[2] This may hinder the further development and improvement of AI systems. This is sometimes referred to as AI’s data problem.[3] However, making more data available to train AI raises various concerns, not least, in relation to data privacy, thus, AI has a data privacy problem.

Federated learning (FL) may provide a solution to this problem.[4] The basic premise behind FL is simple: In the standard training of AI systems, data is collected and transferred onto a central server, where the AI system trains on the data. In contrast, in FL, data is not collected but remains in its original locations. Instead, each party receives the raw model, which is then trained on the dataset in situ. Upon completion of the training, the trained model is sent back, and is combined with other similarly trained models, into a single, integrated model. The result is that the integrated model has effectively been trained on all the datasets, but no data is transferred out from its original location.

Data is often held in ‘silos’.[5] A data silo is anything that holds data (e.g. smartphones, laptops, hospitals, banks, etc.) but accessing data held in silos is challenging. Sometimes regulation, like data protection legislation or IP law, prevents data from being shared. Alternatively, there may be a reluctance to share data, for instance, due to concerns about data confidentiality or data integrity. The intended purpose of FL is to ‘break open’ these data silos, by enabling the training of AI systems while preserving data privacy and confidentiality. If FL can fulfill this promise, this could bring significant benefits. By way of example, “healthcare providers could train algorithms to develop new drugs based on patient data, while maintaining privacy and patient confidentiality, or researchers in different countries could train algorithms without transmitting data across jurisdictions.”[6]

FL has generated significant interest amongst the computer science community, however, there is a dearth of writings on, and understanding of, FL among lawyers and legal academics.[7] This is a problem because the conceptualization of concepts like data and privacy may differ across disciplines[8] and to what extent FL can break open data silos created by regulation requires a legal analysis. This article aims to fill this lacuna by providing a comprehensive legal analysis of FL. This will be done by examining how the data protection principles – represented by the most stringent standards under the European Union’s General Data Protection Regulation (GDPR)[9] – applies to FL. The argument will made that from a legal perspective FL can indeed be an effective method to ensure compliance with data protection regulation.

Although the legal analysis in this article focuses on the GDPR, the significance of the analysis extends beyond the EU. EU regulation has proven influential beyond the EU,[10] and many data protection regimes are modelled on the GDPR.[11] Moreover, FL raises an important conceptual question about the relationship between data protection and the development of AI; that is, whether the training of AI systems on personal data is in itself an infringement of data protection rights, or whether there is such an infringement only because of some feature of how the training is conducted, e.g. that data is collected to a central server or access to the data is given to a third party. In the standard training of AI systems, this question will seldom arise as data needs to be collected for the AI systems to be trained, and many data protection regimes regulate the collection of data.[12] However, because in FL no data is collected, this issue is brought into sharp focus, and in the age of AI, this is a question every data protection regime will need to answer.[13]

This article suggests that the training of AI systems itself does not infringe data protection rights, provided that the data is kept secure from abuse (i.e. the data being used for purpose other than training AI). The argument is that using personal data to train AI systems does not reveal information about an individual, such information is only revealed when the AI system is applied to a particular case. This article will show that the GDPR can be interpreted in this way, and if this interpretation is followed, the GDPR can provide for the protection of personal data, without hindering the development of AI systems.[14] For the legal analysis of FL this means that the question of whether the training of an AI system through FL is GDPR compliant will largely depend only on one factor, namely whether the data is kept secure, rather than the host of factors, which is typically required to assess GDPR compliance in standard training of AI systems. Thus, FL should make it easier for AI developers to train models on personal data.

 Despite FL being a potential boon to AI’s compliance with data protection regulation, this article will express doubt as to whether FL can make a significant contribution towards solving AI’s data problem. Although, FL may be an effective way to deal with data protection, data protection is only one among other obstacles to data sharing. For instance, IP law may prevent data from being shared, and FL does not directly impact the application of IP law. Moreover, it is unlikely that FL will be used sufficiently widely to make significantly more data available, than is currently the case. There is also a lack of legal clarity in relation to FL, and without legal clarity it is unlikely that FL will be commonly adopted. Furthermore, currently, FL is not used widely across different organizations.[15] This means that a lot of data will remain inaccessible. This is an area where regulators and policy makers may be able to make a positive contribution. This paper will suggest that, if regulators and policy makers decide to facilitate the use of FL, a possible tool is the creation of a FL regulatory regime, including an FL licensing regime, to facilitate data sharing across organizations.

This article will proceed as follows. First, an overview of FL will be provided. Second, this article will give a detailed analysis of how the GDPR applies to the training of AI systems. This analysis will take up considerable space, but it is crucial to understand how the GPPR applies to the training of AI systems as without such understanding, it is impossible to examine how the GDPR applies to FL. Third, this article will analyze to what extent FL can facilitate the sharing of non-personal data and examine the obstacles to FL being used more widely. Note that this article focuses on FL in relation to data protection regulation. Other issues, like IP law or antitrust law, will not be considered directly and are out of the scope for this article.

[1] Thilo Hagendorff & Katharina Wezel, 15 Challenges for AI: Or What AI (Currently) Can’t Co, 35 AI & Soc 355 (2020).

[2] Tal Roded & Peter Slattery, What Drives Progress in AI? Trends in Data, FutureTech (March 19, 2024), https://futuretech.mit.edu/news/what-drives-progress-in-ai-trends-in-data.

[3] Devika Rao, All-powerful, ever-pervasive AI is running out of internet, The Week (June 5, 2024), https://theweek.com/tech/ai-running-out-of-data; S.E. Whang, et al. Data collection and quality challenges in deep learning: a data-centric AI perspective, 32 VLDB J. 79 (2023).

[4] See Brendan McMahan & Daniel Ramage,, Federated Learning: Collaborative Machine Learning without Centralized Training Data, Google Research Blog (April 6, 2017), https://ai.googleblog.com/2017/04/federated-learning-collaborative.html.

[5] See Florian Gamper, Federated Learning: What Lawyers Need to Know, L.Gazette,  (June 2024), https://lawgazette.com.sg/feature/federated-learning-what-lawyers-need-to-know/ (the Law Gazette is the official publication of the Law Sciety of Singapore).

[6] Id.

[7] However, there is some legal analysis of FL. See e.g. S. Rossello et al., Data Protection by Design in AI? The Case of Federated Learning, 116 Computerrecht (2021); Nguyen Truong et al. Privacy Preservation in Federated Learning: An Insightful Survey from the GDPR perspective, 110 Comput. Secur. J. 12402, 12414-18 (2021).

[8] The same claim could be made in relation to many other concepts, like transparency, bias, fairness, to mention just a few.

[9] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) 2016 O.J. (L119) [hereinafter GDPR].  

[10] Anu Bradford, THE BRUSSELS EFFECT, 107 Nw. U. L. Rev. 1 (2012) (argues that EU regulation impact jurisdictions outside the EU).

[11] Graham Greenleaf, Now 157 Countries: Twelve Data Privacy Laws in 2021/22, 176 Privacy L. & Bus. Int’l Rep., 1, 1 (2022).

[12] GDPR, supra note 11, art. 4.1(2), (states that collecting is a form of processing, inter alia GDPR arts. 5 and 6 regulate processing).

[13] Just to clarify, the question is also relevant for jurisdictions which currently do not have a data protection regime but are considering creating such a regime.

[14] See Giovanni Sartor & Francesca Lagioia, The impact of the General Data Protection Regulation (GDPR) on artificial intelligence, European Parliamentary Rsch. Serv, 76 (June 2020) [hereinafter EPRS Study] (A study at the request of the Panel for the Future of Science and Technology (STOA) and managed by the Scientific Foresight Unit, within the Directorate-General for Parliamentary Research Services (EPRS) of the Secretariat of the European Parliament).

[15] Saikishore Kalloori & Abhishek Srivastava, Towards cross-silo federated learning for corporate organizations, 289 Knowledge-Based Sys. 1, (Apr. 8, 2024).

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A DEEP DIVE INTO THE NEW JERSEY TEMPORARY WORKERS’ BILL OF RIGHTS

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52 Rutgers L. Rec. 220 (2025) | WestLaw | LexisNexis | PDF

While the United States economy at large struggled to recover from the ill-effects of the Covid-19 pandemic, the temporary help service industry set record highs for revenue in 2021 and 2022, consistent with industry forecasts.[1] Indeed, such growth was predictable, as the US economy had heavily-relied on temporary labor during economic downturn in the past, particularly as seen during the Great Recession.[2] While the economy then struggled to get back to pre-recession levels in the early 2010s, the temporary help service industry grew exponentially, much like as seen during the recent pandemic.[3]

The temporary help service industry was certain to act quickly in response to the labor shortage during the pandemic, evidenced by concerted efforts between organizations such as the American Staffing Association and the Retail Industry Leaders Association, of whom would “join forces” to supply temporary labor to “fill high-demand roles” as businesses struggled to staff their stores and warehouses.[4] Thus, temporary workers found themselves on the frontlines doing essential work while their employer firms experienced record profits.[5]

While they may be called temporary workers, many are better described as “permatemps,” or workers who work “temporary” assignments ad infinitum while they “fulfill[] all the duties of [] permanent employee[s] without the security, benefits, or salary of [] permanent employee[s].”[6] Therefore, much temporary labor in the US is temporary in name only, as by 2021, it was estimated that approximately one-third of all temporary workers in the US were permatemps, working the same “temporary” assignments for years at a time.[7]

Whether they be permatemps or true temporary workers, it cannot be understated just how vital such labor is to the US supply chain, as by 2022, more than three-quarters of Fortune 500 firms and their subsidiaries were utilizing such labor in their operations.[8] As the number of permatemps in virtually all industry sectors has grown in recent years, calls by national temporary worker rights organizations such as Temp Worker Justice for increased legal protection for temporary workers have grown as loud as ever.[9] Per Laura Padin and Maya Pinto of the National Employment Law Project, many countries afford more rights to their temporary workers than the laws of the United States generally do, such as the right to equal pay.[10] Unfortunately, calls for rights such as pay equality or parity for temporary workers have historically fallen on deaf ears as far as US state and federal legislatures go.[11]

One state economy that relies particularly heavily on temporary labor is New Jersey.[12] Given that the Port of Newark is among the largest in the United States and is therefore an integral part of the national supply chain, it is perhaps no surprise that New Jersey businesses have been especially reliant on cheap, temporary, logistical labor.[13] New Jersey’s economic demand for such labor only grew stronger amidst the labor shortage of the recent pandemic and was seemingly as strong as anywhere in the US.[14] Without such workers, it is plausible that the national supply chain would have broken down during Covid and may even break down today.[15]

As one New Jersey temporary worker explained, “[d]uring [the Covid-19 pandemic], [workers] risked [their] lives to do essential work without adequate protections.”[16] Such is seemingly the sentiment among vast numbers of temporary workers who keeping the national economy afloat amidst the recent pandemic being grossly underpaid and under-protected by state and federal laws for decades prior.[17] Given this dissatisfaction with the status quo, New Jersey temporary workers have been lobbying the state legislature to address such inequality between temporary workers and their permanent counterparts for years.[18] Such inequality and abuse has drawn the attention of the National Employment Law Project, whose members have conducted extensive research into the national temporary help service industry’s practices that “make[] [temporary workers] uniquely susceptible to illegal conduct and abuse.”[19] While Laura Padin and Maya Pinto, authors of the policy brief, suggested comprehensive “policy solutions that [would purportedly] rein in the temporary staffing industry, provide temporary workers with protections from exploitation, and create a level playing field for temporary workers,” most states have failed to adopt meaningful protections for temporary workers consistent with such suggestions.[20] That was until 2023, when New Jersey Bill A1474, better known as the “New Jersey Temporary Workers’ Bill of Rights” (the “Act” or the “New Jersey Act” throughout this note), became law.[21]

[1] Staffing Employment Sees Second Year of Postpandemic Growth, Am. Staffing Assoc. (Mar. 23, 2023), https://americanstaffing.net/posts/2023/03/23/second-year-of-postpandemic-growth/ (the “[t]otal annual sales for the staffing industry totaled $159.1 billion in 2022, an increase of 10.3% from $144.2 billion in 2021 and a new record high.”); US Staffing Revenue to Grow 16% This Year to Record High: SIA Forecast, Staffing Indus. Analysts (Sept. 8, 2021), https://web.archive.org/web/20211117170844/https://www2.staffingindustry.com/Editorial/Daily-News/US-staffing-revenue-to-grow-16-this-year-to-record-high-SIA-forecast-58974 (predicting that “all segments of the industry will see double-digit growth this year, in many cases as part of a ‘V-shaped’ bounce back from declines experienced in 2020.”).

[2] See Michael Grabell, The Expendables: How the Temps Who Power Corporate Giants Are Getting Crushed, ProPublica (June 27, 2013, 8:00 AM), https://www.propublica.org/article/the-expendables-how-the-temps-who-power-corporate-giants-are-getting-crushe.

[3] Id. (“[A]s the economy continue[d] its slow, uneven recovery [from the Great Recession], temp work … [increased] 10 times faster than private-sector employment as a whole.”).

[4] ASA and RILA Partner to Address Critical Need for U.S. Retail Workers During Covid-19 Pandemic, Am. Staffing Assoc. (Mar. 25, 2020), https://americanstaffing.net/posts/2020/03/25/retail-workers-during-covid-19-pandemic/. The two associations worked together, “provid[ing] an online, searchable directory to connect RILA member retailers to ASA member staffing agencies.”

[5] Am. Staffing Assoc., supra note 1.

[6] Jeff Johnson, Everything You Need to Know About Permatemping, Lacosta Facility Support Serv. (Sept. 1, 2021), https://www.lacostaservices.com/blog/everything-you-need-to-know-about-permatemping/.  

[7] Id. “Often, permatemps begin in a temporary position with the expectation it will become a permanent job, only to stay in the same position for years with no change.”; see also Laura Padin & Maya Pinto, Lasting Solutions for America’s Temporary Workers, Nat’l Emp. L. Project (Aug. 26, 2019), https://www.nelp.org/app/uploads/2019/08/Lasting-Solutions-for-Americas-Temporary-Workers-Brief.pdf. “Temporary workers can languish in the same position for several months and even years—working side-by-side with permanent employees— without ever being offered a permanent position.”

[8] See Nat’l Emp. L. Project, Ensuring New Jersey Temporary Workers have Good Jobs with Living Wages (2018), https://www.nelp.org/app/uploads/2018/03/NJ-temp-workers-fact-sheet.pdf. “Seventy-seven percent of Fortune 500 firms now use third-party logistics firms, who may then contract out to an army of smaller firms to move their goods.”

[9] Temp Worker Just. (last visited Mar. 13, 2024), https://www.tempworkerjustice.org/ [http://web.archive.org/web/20240419044225/https://www.tempworkerjustice.org/]. (Temp Worker Justice is a temporary worker advocacy group based in Washington, D.C.).

[10] As of 2019, the following countries “[r]equir[e] wage parity and equal benefits for temporary workers and permanent employees: Argentina, Austria, Belgium, Brazil, China, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, India, Indonesia, Ireland, Italy, Latvia, Luxembourg, Mexico, the Netherlands (with some exceptions), Norway, Poland, Portugal, Russia, Slovakia, Slovenia, Spain, South Korea, Sweden, and the United Kingdom (after a 12-week period).” Padin & Pinto, supra note 7, at 7.

[11] Nat’l Emp. L. Project, Temp Workers Demand Good Jobs: Survey reveals poverty pay, permatemping, deceptive recruitment practices, and other job quality issues (2022), https://www.nelp.org/wp-content/uploads/Temp-Workers-Demand-Good-Jobs-Report-2022.pdf.

[12] By 2022, it was estimated that “[t]here [we]re more than 127,000 people in New Jersey employed by temporary staffing agencies.” Eric Kiefer, NJ ‘Temp Worker Bill of Rights’ Would Protect 127,000 Employees, Patch (June 30, 2022), https://patch.com/new-jersey/montclair/nj-temp-worker-bill-rights-would-protect-127-000-employees.

[13] Nat’l Emp. L. Project, supra note 8, at 1. “Because the Port of Newark is the second-largest port in the country, temp and staffing agencies large and small have grown up all [of New Jersey], often in low-income communities of color. Two New Jersey counties appear on a 2012 list of top ten U.S. counties with the highest concentration of temporary help service workers . . . [and] [o]ut of 142 distinct logistics facilities captured in a New Jersey survey, over half had workers employed through staffing agencies working at their sites. On average, agency workers made up more than half of the total workforce (61.4%) at these sites. Three-quarters were dispatched to the same employer every day.”

[14] Kiefer, supra note 12. “’During the pandemic, New Jersey’s temporary workers in logistics and manufacturing plants kept our economy going, making and packaging the products that allowed many of us to stay at home,’ said Laura Padin, Director of Work Structures, National Employment Law Project.”

[15] Kiefer, supra note 12.“Many [temporary workers] are crucial to maintaining the supply chain up and down the Interstate 95 corridor, working in warehouses to unpack shipped goods and repackage them for consumers.”

[16] Kiefer, supra note 12.

[17] Kiefer, supra note 12.

[18] Kiefer, supra note 12. “’For too many years, temp workers like me have been subject to wage theft, abuse and exploitation,’ said Rodriguez, a member of Make The Road NJ, one of the groups supporting the proposed law,” and “’That’s why [temporary workers] have been fighting for years for the Temp Workers’ Bill of Rights.’”

[19] Padin & Pinto, supra note 7, at 1.

[20] Padin & Pinto, supra note 7, at 1.

[21] Governor Murphy Signs “Temporary Workers’ Bill of Rights” into Law, Official Site State New Jersey (Feb. 6, 2023), https://www.nj.gov/governor/news/news/562023/20230206b.shtml.

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BRINGING INSIDER TRADING REGULATIONS TO THE 21ST CENTURY: THE POWER OF AI-BASED COMPLIANCE PLATFORMS

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52 Rutgers L. Rec. 192 (2025) | WestLaw | LexisNexis | PDF

Before the 21st century, Martha Stewart was synonymous with homemaking, cooking, and entertaining. Now, she is more commonly associated with courtroom proceedings, incarceration, and stepping down as Chief Executive Officer (“CEO”). In December 2001, Stewart sold 3,928 shares of ImClone stock just a day before the Food and Drug Administration (“FDA”) announced its decision not to review ImClone’s application for a new cancer drug, Erbitux[1], which caused ImClone’s stock price to plummet.[2]

Stewart became embroiled in controversy when she sold her ImClone shares subsequent to receiving insider information from her broker, Peter Bacanovic.[3] Bacanovic allegedly disclosed to Stewart that ImClone’s CEO, Sam Waksal, was divesting his shares due to the FDA’s ruling.[4] Upon receiving this information from Bacanovic, Stewart promptly liquidated all her shares.[5] Authorities charged both Stewart and Bacanovic with multiple crimes, including securities fraud, obstruction of justice, and making false statements.[6] In 2004, the Southern District Court of New York found her guilty of obstruction of justice, making false statements, and conspiracy.[7] The court sentenced her to five months in prison, five months of home confinement, and two years of probation.[8] Additionally, she faced personal and professional consequences, including resigning as CEO of Martha Stewart Living Omnimedia[9] and being banned from serving as a director, CEO, or any other officer of a public company for five years.[10] This case raised awareness about the importance of ethical behavior and transparency in financial markets, particularly with insider trading.[11]

Although many doubt that Stewart is completely innocent, the scandal did engender critics to attack the gray areas in insider trading regulations.[12] Rosemary Fanelli, Managing Director and Chief Regulatory Strategist at Duff & Phelps Investment Management, argued that the current regulations are confusing, ambiguous, and “so contradictory that questions of constitutionality are legitimate.”[13] Particularly, existing law lacks clear definition regarding to whom the law applies, the type of information that must be possessed, and the kind of behavior that is prohibited.[14] According to Fanelli, the vague wording of the law suggests that if a woman is advised by her broker to sell a particular stock after indirectly receiving a message from the company’s CEO, without ever directly communicating with him, it would not constitute insider trading violations.[15] Given that this was the situation with Stewart, there is definitely cause for concern.[16]

Insider trading is estimated to occur at least four times more frequently than what regulators manage to detect.[17] Specifically, estimates suggest that insider trading takes place in approximately one out of every five mergers and acquisitions and one out of every twenty quarterly earnings announcements.[18] These statistics are disturbing because insider trading undermines the fairness and integrity of financial markets. When individuals use non-public information to gain an unfair advantage in trading, it erodes trust in the system and can lead to an uneven playing field for investors.[19] This can ultimately discourage people from participating in the market, hindering its overall functionality.[20] In other words, addressing insider trading is important for investor confidence.[21] This confidence contributes to the overall stability and attractiveness of financial markets.[22]

Even though insider trading regulation aims to prevent unfair advantages in the financial markets by prohibiting the use of material, nonpublic information for trading purposes, as mentioned previously, there are several gray areas.[23] These gray areas include ambiguities in defining what constitutes insider trading, what information is material, and what information is nonpublic.[24] Thus, this article proposes to address the uncertainties in insider trading regulation by introducing an innovative solution: an Artificial Intelligence (“AI”)-Based Compliance Platform. By providing clearer insights into what constitutes insider trading, this AI-powered platform promises to bring much-needed clarity and confidence to the enforcement of insider trading regulations.[25]

Part II of this article provides a background on insider trading regulations and the challenges posed by ambiguity and lack of clarity in defining materiality and nonpublic information. Part III discusses scholars’ proposed solutions to the shortcomings of insider trading regulations, such as clearer definitions and precise materiality guidance. While these proposals offer valuable insights, they will not comprehensively solve the intricate challenges of detecting and preventing insider trading in today’s financial landscape. Part IV proposes the creation of an AI-Based Compliance Platform to address the shortcomings of earlier proposals aimed at aiding companies and individuals in adhering to insider trading regulations. For example, the Platform would leverage AI algorithms trained on ethical principles and legal frameworks to provide proactive guidance and monitoring of insider trading activities, ensuring alignment with recognized standards of ethical conduct and legal compliance. Part V concludes by emphasizing how current regulations on insider trading face challenges in deterring and prosecuting offenders due to persistent gray areas. However, the AI-Based Compliance Platform offers a comprehensive solution with real-time monitoring and adaptive capabilities to detect and prevent insider trading effectively. With its dynamic approach, the Platform leads the way towards ensuring trust and accountability in global financial systems.

[1] Lynsey Eidell, Why Did Martha Stewart Go to Prison? A Look Back at Her 2004 Fraud Case, PEOPLE,https://people.com/martha-stewart-fraud-case-prison-sentence-look-back-8550277 (Last updated Nov. 5, 2024, 8:40 AM).

[2] Id. (stating that ImClone’s stock dropped by 16 percent, falling from $60 per share to $46 per share).

[3] Id.

[4] Id.

[5] Id. (explaining that when Stewart divested her ownership on December 27, 2001, the shares were liquidated for roughly $227,000, resulting in her gaining a profit of around $51,000 from the transaction).

[6] Eidell, supra note 1.

[7] Eidell, supra note 1

[8] Eidell, supra note 1

[9] A Glance at the History of Martha Stewart Living Omnimedia, FOX BUSINESS (last updated, Mar. 5, 2016, 5:12 AM), https://www.foxbusiness.com/markets/a-glance-at-the-history-of-martha-stewart-living-omnimedia (discussing how Martha Stewart established Martha Stewart Living Omnimedia in 1997, where she consolidated her books, magazine, and TV show. For the following thirty years, the company would expand to include home and kitchen products sold at Macy’s Inc., Home Depot, PetSmart, Michaels, and J.C. Penney. Martha Stewart Living Omnimedia has recorded annual losses without interruption since 2003, except for the year 2007. In 2015, her company was acquired by Sequential Brands Group for $353 million.).

[10] Eidell, supra note 1 (mentioning how Stewart was also required to pay $195,000 in fines and penalties).

[11] Eidell, supra note 1.

[12] See Rosemary Fanelli, 50 Trades Of Grey: The Pain Of Insider Trading, FORBES (Apr. 7, 2017, 11:16 AM), https://www.forbes.com/sites/rosemaryfanelli/2017/04/07/50-trades-of-grey/?sh=7247a271640f.

[13] Id.

[14] Id. (noting that due to the ambiguity of the regulations, individuals are plagued with fear and confusion, often leaving the true wrongdoers unchecked).

[15] Id.

[16] Id.

[17] How much insider trading really happens in US stock markets?, U. of Tech. Sydney (Mar. 23, 2021), https://www.uts.edu.au/news/business-law/how-much-insider-trading-really-happens-us-stock-markets.

[18] Id.

[19] James J. Park, Insider Trading and the Integrity of Mandatory Disclosure, 2018 WIS. L. REV. 1133, 1134, 1174 (2018); Reed Harasimowicz, Nothing New, Man! – The Second Circuit’s Clarification of Insider Trading Liability in United States v. Newman Comes at a Critical Juncture in the Evolution of Insider Trading, 57 B.C. L. REV. 765, 791-92 (2016) (explaining that this line of thinking is called the “parity of information,” or fairness, rationale. The rationale asserts that federal securities laws should establish a system ensuring equal access to information in the securities market. This parity of information is deemed essential for investors to make informed and rational investment choices.).

[20] Park, supra note 19, at 1174.

[21] Id.

[22] Id.

[23] Cindy A. Schipani & H. Nejat Seyhun, Defining “Material, Nonpublic”: What Should Constitute Illegal Defining “Material, Nonpublic”: What Should Constitute Illegal Insider Information?, 21 Fordham J. Corp. & Fin. L. 327 (2016).

[24] See id.; Frank J. Cavico & Bahaudin G. Mujtaba, Insider Trading v. Trading on Inside Information: A Primer for Management, 8 Eur. J. Bus. & Mgmt. 72 (2016).

[25] See Schipani & Seyhun, supra note 23.

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DIGITAL DISSENT: EXAMINING THE LEGAL IMPLICATIONS OF CYBERPICKETS

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52 Rutgers L. Rec. 160 (2025) | WestLaw | LexisNexis | PDF

INTRODUCTION

In an era characterized by the pervasive influence of digital technology and the rapid evolution of online social activism, traditional labor disputes and picketing face a period of transformation. This transformation is exemplified by the emergence of cyberpicketing[1], a form of digital protest that leverages the power of the internet to amplify the voices of workers and unions. Methods can include, inter alia, the use of social media campaigns, online petitions, anonymous blogging, whistleblowing, virtual demonstrations, email initiatives, digital boycotts, and participation in online forums[2]. The legal community needs to interpret and adapt traditional labor laws to address the issues raised by cyberpicketing.

Whether cyberpickets will constitute a legitimate and long-term form of labor activism[3] in the digital age depends on the establishment of formal regulations on their use and limitations. This note will analyze relevant National Labor Relations Board (“NLRB”) regulations and case law, labor union activity, legislative developments, and scholarly discourse. [4]By focusing on the legal challenges posed by cyberpicketing, this note seeks to offer insights into potential avenues for regulatory reform and judicial interpretation. The aim is to balance both the right to labor activism and the right of employers to defend themselves against damaging actions by employees.[5] And in doing so connect the broader principles of our established institutional frameworks with digital protest, ensuring that the digital era’s innovations do not come at the expense of fundamental legal values.

This paper will be divided into five parts. First, in Part II I will examine the transformation of picketing from traditional street demonstrations to the digital realm and seek to align cyberpicketing with any other form of picketing. Next, Part III discusses the malicious intentions prevalent in cyberspace, highlighting the potential legal ramifications. Parts IV and V of the note examine how statutes and existing case law provide a legal framework for surrounding cyberpicketing activities. Part VI explores the conflicting interests of employers and employees with respect to cyberpicketing. Additionally, it analyzes various responses by employers to cyberpicketing incidents and considers potential regulatory reforms aimed at balancing the interests of both parties. Overall, this comprehensive exploration provides insights into the legal, ethical, and practical implications of cyberpicketing, offering perspectives for policymakers, legal practitioners, and scholars alike.

[1] A cyberpicket refers to a digital form of protest or collective action initiated by employees toward their employer, aimed at expressing concerns, promoting better workplace conditions, and addressing labor-related issues. See Cyberpicketing to Data Aggregation (Technology Terms), What-When-How, https://what-when-how.com/technology-terms/cyberpicketing-to-data-aggregation-technology-terms/ (Mar. 9, 2013).    

[2] Id.

[3] Long-term forms of labor activism refer to sustained, organized efforts by workers and labor groups to advocate for improved working conditions, wages, and labor rights over extended periods. These efforts often include unionization, collective bargaining, strategic litigation, policy advocacy, and public campaigns aimed at systemic change. See generally Ruth Milkman, L.A. Story: Immigrant Workers and the Future of the U.S. Labor Movement 2–3 (Russell Sage Found. 2006).

[4] The NLRB, established in 1935, operates as an autonomous federal entity tasked with protecting employees’ rights. These rights include the ability to organize, collaborate for improved working conditions, decide on representation for collective bargaining negotiations with employers, or opt out of such activities. The NLRB administers and enforces the National Labor Relations Act (“NLRA”), reflecting the need for consistency and adjudication in interactions between laborers and employers. Similarly, the primary purpose of the NLRA is to protect the rights of employees and employers, encourage collective bargaining, and safeguard the rights of employees to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. See About NLRB: Who We Are, NLRB, https://www.nlrb.gov/about-nlrb/who-we-are (last visited Jan. 27, 2025).

[5] In sum, this note argues that our established institutional frameworks must ensure that the digital era’s innovations do not come at the expense of fundamental legal values.

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THE TWO WORST JUSTICES: WHAT MAKES A BAD SUPREME COURT JUDGE?

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52 Rutgers L. Rec. 109 (2024) | WestLaw | LexisNexis | PDF

INTRODUCTION

There have been criticisms of Supreme Court Justices of the remote past; many denunciations, in fact. Just as an example, Chief Justice Roger Taney, the author of the Dred Scott decision, came to be hated by slavery abolitionists.[1] The reason may have been the holding: that although Scott was a free man, he was still enslaved, an idea repugnant today and strongly disliked at the time.[2] Or it may have been the reasoning, which was to the effect that as a former slave, Scott was mere “property.” Or it might have been the impact of the decision on the Civil War.[3] And commentators have added other candidates for worst justice of all time, including Justices McReynolds, Moore, and Chase.[4]

     But this article is about two modern justices. The two worst, in this author’s judgment. This judgment, of course, demands a foundation in principles that are independent of the outcomes of the decisions the justices made. The criteria this article employs are four: how well the reasoning stands up to criticism, how well the justices have been able to recognize and deal respectfully with opposing views, whether they have avoided egotism and idiosyncratic preferences, and how the decisions that are the aftermath of the opinions have worked out.[5]

     To end the suspense, let me disclose at this point that the two candidates here are Justices Blackmun and Scalia. This conclusion may surprise many people, especially those who are accustomed to seeing Justice Scalia as brilliant.[6] The ranking, however, is assigned independently of the outcomes of the justices’ opinions.

     Part I of this article covers Justice Blackmun. Subpart A concerns itself with what has been called the justice’s “other wrong decision”[7]: his profoundly misdirected baseball-antitrust opinion. Then, subpart B considers his abortion opinions. A third subpart, C, concerns a decision that has not elicited the controversy it should have, his child-neglect-due-process decision, which refuses to consider whether a child has any interest in termination of parental rights after being neglected.

     Part II is about Justice Scalia. Subpart A covers the fallout from his Confrontation Clause opinions, which begin with weak reasoning and which have tied the Court in knots. Subpart B evaluates these opinions and their aftermath. Subpart C concerns Justice Scalia’s opposition to the Court’s decision upholding the Sentencing Commission, in which his rhetoric was inappropriate.

* A.B. Harvard University 1966; J.D. University of Texas 1969. John B. Neibel Professor of Law, University of Houston.

[1] https://www.history.com/topics/black-history/dred-scott-case. 

[2] Id.

[3] Id.

[4] See https://www.findlaw.com/legalblogs/supreme-court/who-are-the-worst-supreme-court-justices-of-all-time.

[5] See, infra, e.g., Pt. I(B)(9) of this article (applying these criteria to Justice Blackmun’s opinion in Roe v. Wade).

[6] See Meghan J. Ryan, Justice Scalia’s Bottom-Up Approach to Shaping the Law, 25 Wm. & Mary Bill of Rts. J. 297, 313-14 (2016).

[7] See infra Pt. I of this article (quoting source supporting this assertion).

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HYBRID RIGHTS IN THE FOURTH CIRCUIT: FACT OR FICTION?

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52 Rutgers L. Rec. 80 (2024) | WestLaw | LexisNexis | PDF

INTRODUCTION

In 2023, the American Library Association reported a total of 695 attempts by the public to “censor library materials and services.”[1] Within these 695 attempts to ban or restrict library materials, “1,915 unique titles were targeted for censorship” while “3,293 total titles were targeted for censorship.”[2] States within the Fourth Circuit accounted for 55 attempts to censor materials, with 589 total titles targeted for censorship.[3] These attempts have been finding their way into school districts, where parents are requesting to opt out their children from lessons with topics like gender identity, sexuality, and race with varying degrees of success.[4] Picture books with LGBTQ characters were overwhelmingly targeted in children’s book challenges with the main reason for wanting books removed that challengers found discussion of LGBTQ characters and their lives to be objectionable, and not appropriate for children.[5] Parents will voice their disagreement with school curriculum and literature choices by stating their child’s exposure to “inappropriate” topics run afoul of a parent’s right to decide what their child should be exposed to (parental rights) and the family’s religious beliefs and practices.[6]  

Parents brought a challenge against a Maryland school district for violating their parental rights and free exercise rights when the school district implemented a diverse reading curriculum containing children’s books featuring LGBTQ characters without providing parents an option to opt their children out of the curriculum.[7] The combination of a parental rights and free exercise claim presents the Maryland District Court with the opportunity to analyze what is known as a hybrid rights claim. The Fourth Circuit, which contains the Maryland District Court, does not presently have a method to analyze hybrid rights claims while other circuits have developed frameworks to analyze these claims.[8] This paper will discuss (1) the emergence of a hybrid rights case in the Fourth Circuit; Mahmoud v. McKnight; (2) the origin of the hybrid rights theory and approaches other Circuit Courts have taken when analyzing hybrid rights cases; (3) and the best approach for the Fourth Circuit to take, seeing as the Fourth Circuit currently looks to other circuit courts for persuasive authority on hybrid rights cases. When considering how to analyze a hybrid rights claim, the current approaches pose more drawbacks than benefits. Some approaches could be combined or adapted in order to achieve a more realistic or comprehensible outcome, but the best approach is likely to eschew a hybrid rights analysis and just consider each individual claim on its own merits as the first approach does.

[1] Sareen Habeshian, Attempts to ban books at public libraries surge at record levels, Axios (Sept. 22, 2023), https://www.axios.com/2023/09/22/book-bans-libraries-surge.

[2] Book Ban Data, Banned and Challenged Books https://www.ala.org/advocacy/bbooks/book-ban-data

[https://web.archive.org/web/20240912135200/https://www.ala.org/bbooks/book-ban-data]

(last visited Nov. 8, 2023).

[3] Book Ban Data, supra note 2 (Maryland accounted for 10 censorship attempts covering 66 titles, Virginia accounted for 14 attempts covering 356 titles, West Virginia accounted for 1 attempt covering 3 titles, North Carolina accounted for 18 attempts coveriBook Ban Data,

[4] See Julia Shapero, Judge rejects Maryland parents’ motion to keep kids out of lessons with LGBTQ books, Hill (Aug. 25, 2023), https://thehill.com/homenews/education/4171618-judge-rejects-maryland-parents-motion-to-keep-kids-out-of-lessons-with-lgbtq-bSee Julia Shapero; see also Hannan Adely, Can parents opt out of New Jersey’s LGBTQ curriculum law?, Northjersey.com, June 26, 2019), https://www.northjersey.com/story/news/education/2019/06/26/teaching-lgbtq-in-schools-can-nj-parents-opt-out/1549151001; see also Margaret Barthel, Virginia Finalizing Policy Allowing Parents to Opt Out of Sexually Explicit Content in Schools, dcist.com (Aug. 3, 2022), https://dcist.com/story/22/08/03/virginia-schools-explicit-content-lgbtq-books/; see also Destinee Patterson, NC school districts adjust to controversial new ‘Parents’ Bill of Rights’ law, WRAL News (Oct. 5, 2023), https://www.wral.com/story/nc-school-districts-adjust-to-controversial-new-parents-bill-of-rights-law/21083428/.

[5] Hannah Natanson, ‘Racist,’ ‘grooming’: Why parents are trying to ban so many picture books, Wash. Post (July 12, 2023), https://www.washingtonpost.com/education/2023/07/12/grooming-racist-why-adults-are-waging-war-childrens-picture-books-or-insidHannah Natanso

[6] Mahmoud v. McKnight, 688 F. Supp. 3d 265, 276 (D. Md. 2023), aff’d, 102 F.4th 191 (4th Cir. 2024).

[7] Id. at 271, 301.

[8] Id. at 304-306.

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TOWARDS A NEXTGEN LAW SCHOOL CURRICULUM

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52 Rutgers L. Rec. 28 (2024) | WestLaw | LexisNexis | PDF

INTRODUCTION

As the third-smallest law school in the nation,[1] Appalachian School of Law (“ASL”) is probably not the first law school to come to mind when thinking of cutting-edge, innovative curricular and pedagogical changes in legal education.   Yet, ASL has long prided itself on its agility and ability to rapidly respond to outside forces.  In February, 2022, when the American Bar Association (“ABA”) revised Standard 303(b) on development of a professional identity and Standard 303(c) on educating law students on bias, cross-cultural competency, and racism, ASL reacted quickly by developing and adopting its Implementation Plan before the beginning of the next term.[2],[3]  An article on ASL’s approved Implementation Plan was the first entry published on the University of St. Thomas School of Law’s Holloran Center[4] Professional Identity Implementation Blog on August 22, 2022.[5]  A year later, ASL reported on its progress in executing its Implementation Plan.[6] 

So, when the National Conference of Bar Examiners (“NCBE”) Board of Trustees approved its Testing Task Force’s recommendation[7] for the five-year implementation of a completely revised bar examination, ASL didn’t hesitate to roll up its sleeves and get to work on examining its entire curriculum and making necessary changes to prepare its students for the “NextGen Bar Exam.”  To this author’s knowledge, although a few articles have addressed it, no other law school has published a NextGen Curriculum.[8]  This article aims to provide law school faculty and administrators with details on how ASL achieved its goal of putting into place a NextGen Curriculum for the entering Class of 2027.

Section A of this article will briefly review the development of the NextGen Bar Exam and its differences from the Uniform Bar Exam.  Section B will discuss ASL’s self-assessment process for ascertaining its current curriculum’s sufficiency for the NextGen Bar Exam.  Section C will examine ASL’s method in analyzing its self-assessment results to revise its curriculum to meet the new challenges, and will compare ASL’s existing and newly-revised NextGen curricula.  Section D looks forward to how ASL will continue to assess the results of the curricular changes and fine-tune the program of legal education. 

[1] ASL had a full-time enrollment of 161 students according to U.S. News & World Report’s 2024 Best Law Schools rankings.  Only the law schools at University of the District of Columbia (Clarke), with 125 full-time students, and Western Michigan University (Cooley), with 154 full-time students, are smaller. See 2024 Best Law Schools, U.S. News & World Rep., https://www.usnews.com/best-graduate-schools/top-law-schools/law-rankings?_sort=enrollment-asc (last visited Dec. 19, 2024).   

[2] See Report to the House of Delegates, Resolution (Feb. 2022), Amer. Bar Ass’n Section of Legal Educ. and Admissions to the Bar, https://www.americanbar.org/content/dam/aba/administrative/news/2022/02/midyear-hod-resolutions/300.pdf.

[3] See Dawn Figueiras, One Law School’s Faculty-Approved Implementation Plan for Complying with the ABA’s

Revised Standards 303(b) and 303(c), Univ. St. Thomas: Holloran Ctr. Pro. Identity Impl. Blog (August 22, 2022), https://blogs.stthomas.edu/holloran-center/implementation-plan/.

[4] The Holloran Center for Ethical Leadership at the University of St. Thomas School of Law has focused on curriculum development and the professional formation of law students since its founding in 2006. Its Professional Identity Formation Blog has become one of the nation’s major sources for discussion and reflection upon professional identity formation for law students. See Univ. St. Thomas: Holloran Ctr. for Ethical Leadership, https:/law.stthomas.edu/about/centers-institutes/holloran-center/ (last visited Dec. 19, 2024).

[5] See Figueiras, supra note 4.

[6] See Dawn Figueiras, One Year Later: An Update on One Law School’s Faculty-Approved Implementation Plan, Univ. St. Thomas: Holloran Ctr. Pro. Identity Impl. Blog  (July 26, 2023), https://blogs.stthomas.edu/holloran-center/one-year-later-an-update-on-one-law-schools-faculty-approved-implementation-plan.

[7] See NCBE Board of Trustees Votes to Approve Testing Task Force Recommendations, Nat’l Conf. of Bar Exam’rs (Jan. 28, 2021), https://www.ncbex.org/news-resources/ncbe-board-trustees-votes-approve-testing-task-force-recommendations.  

[8] See Melissa Shultz, Professor, Please Help Me Pass the Bar Exam: #NEXTGENBAR2026, 71 J. of Legal Educ. 141, 169 (Fall 2021), https://jle.aals.org/home/vol71/iss1/13/ (confirming that law schools across the country will need to “grapple with the substantial changes … and begin to critically assess how their curricula and assessments need to be modified in advance of the [NextGen Bar Exam]”).

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A BRIDGE TOO FAR: SECTION 3 AFTER TRUMP V. ANDERSON

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52 Rutgers L. Rec. 1 (2024) | WestLaw | LexisNexis | PDF

I. INTRODUCTION

After the 2020 presidential election, then-President Donald Trump engaged in a monthslong legal and social media campaign to undermine the legitimacy of the election.[1] On January 6, 2021, thousands of armed rioters attacked the U.S. Capitol in a failed attempt to stop Congress’s certification of the 2020 presidential election.[2] In the fallout of the attack, Donald Trump was impeached by the House of Representatives for incitement of insurrection.[3] At the same time, political and legal commentators began speculating whether the Disqualification Clause of Section 3 of the Fourteenth Amendment would bar Donald Trump from seeking office again.[4] Donald Trump was eventually acquitted by the Senate[5] but the cloud of disqualification under Section 3 of the Fourteenth Amendment lingered after he left office.[6]

This would have been historically unprecedented. Beyond the initial flurry of litigation in the wake of the Civil War, the Disqualification Clause in Section 3 had only been used once since the end of Reconstruction to remove someone from federal office.[7] Previously derided as a “forgotten”[8] and “vestigial”[9] part of the Constitution, Section 3 received new life in the aftermath of January 6. Section 3 has been used as the foundation for lawsuits against officials in six states[10] and was explicitly cited by a court to justify removal from office of a county commissioner in New Mexico.[11] The clause’s timeliness and relevance only grew since mid-2023 when two law professors, William Blaude and Michael Paulsen, alleged that the clause, by operation of law, automatically disqualified Donald Trump from seeking the presidency again.[12] Others disagree.[13]

In late 2023, the threat of disqualification was realized when Donald Trump was disqualified from the Colorado presidential primary under Section 3 of the Fourteenth Amendment by the Colorado Supreme Court, acting under a Colorado state law that allowed voters to petition the secretary of state to keep constitutionally ineligible candidates off of the ballot.[14] The Supreme Court reversed that decision on March 4, 2024, holding that the States could not exercise discretionary judgment on the constitutional qualifications of presidential candidates.[15] But the Court then went further, broadening their ruling and holding that Section 3 is inoperative against would-be federal officeholders unless specifically given life by Congress.[16] And while the Court was unanimous in its holding that the States are powerless to enforce Section 3, the Court’s disembowelment of that Section, reasoning that Section 5 enforcement legislation was “critical” to Section 3’s application, produced a much more controversial 5-4 result.[17]

[1] H.R. Rep. No. 117-663, at 210-14 (2022).

[2] Id. at 76-77.

[3] H.R. Res. 24, 117th Cong. (2021).

[4] See Deepak Gupta & Brian Beutler, Opinion, Impeachment Isn’t the Only Option Against Trump, N.Y. Times (Jan. 12, 2021), https://www.nytimes.com/2021/01/12/opinion/Trump-impeachment-disqualification.html; see also Noah Feldman, Opinion, Trump’s 2024 Hopes Just Crashed Into the 14th Amendment, Bloomberg (Jan. 11, 2021, 3:06 PM), https://www.bloomberg.com/view/articles/2021-01-11/trump-2024-president-may-be-ineligible-after-u-s-capitol-riot; see also Lyle Denniston, Is 14th Amendment Sec. 3 a Dead Letter?, Lyle Denniston L. News (Jan. 10, 2021), https://lyldenlawnews.com/2021/01/10/is-14th-amendment-sec-3-a-dead-letter/

[5] 167 Cong. Rec. S733 (daily ed. Feb. 13, 2021).

[6] Roger Parloff, After the Cawthorn Ruling, Can Trump Be Saved From Section 3 of the 14th Amendment?, Lawfare (June 7, 2022, 1:32 PM), https://www.lawfaremedia.org/article/after-cawthorn-ruling-can-trump-be-saved-section-3-14th-amendment.

[7] Marcy Kahn, Ass’n of the Bar of the City of New York, Report by the Task Force on the Rule of Law on Section 3 of the Fourteenth Amendment to the United States Constitution – The Disqualification Clause 3 (2022) [hereinafter NYC Bar Report].

[8] Mark A. Graber, Teaching the Forgotten Fourteenth Amendment and the Constitution of Memory, 62 St. Louis U. L.J. 639, 639-40 (2018).

[9] Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 Const. Comment. 87, 87 (2021).

[10] NYC Bar Report, supra Note 8, at 4-13.

[11] See New Mexico ex rel. White v. Griffin, No. D-101-CV-2022-00473, 2022 N.M. Dist. LEXIS 1, *67-69 (N.M. Dist. Ct. Sept. 6, 2022).

[12] See Isaac Chotiner, The Constitutional Case for Barring Trump from the Presidency, New Yorker (Aug. 23, 2023), https://www.newyorker.com/news/q-and-a/the-constitutional-case-for-barring-trump-from-the-presidency; see also Matt Ford, The Conservative Legal Roadmap to Disqualify Trump from Office, New Republic (Aug. 13, 2023), https://newrepublic.com/article/174977/baude-paulsen-trump-14th-amendment.

[13] Josh Blackman & Seth B. Tillman, Sweeping and Forcing the President into Section 3, 28 Tex. Rev. L. & Pol. (2024).

[14] Anderson v. Griswold, 2023 CO 63, ¶ 257, 543 P.3d 283 (Colo. 2023), rev’d sub nom Trump v. Anderson, 601 U.S. 100 (2024) (per curiam).

[15] Trump v. Anderson, 601 U.S. 100, 114-15 (2024) (per curiam).

[16] Id. at 104-06.

[17] Id. at 117-18 (Barrett, J., concurring); see also, id. at 121 (Sotomayor, S., Kagan, E., and Jackson, JJ., concurring).

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AN “ASSEMBLAGE” OF OPINIONS: HOW THE COUNTERPOINT OF THE ROBERTS COURT’S SECOND AMENDMENT CASES FIXED INADVERTENCIES IN JOHN MARSHALL’S TREASON DOCTRINE

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51 Rutgers L. Rec. 200 (2024) | WestLaw | LexisNexis | PDF

INTRODUCTION: “ASSEMBLAGE”

A word not defined elsewhere in a source takes its meaning from the context in which it is used.5[1] But when the context of a word changes, so does its meaning. Chief Justice John G. Roberts reasoned on behalf of the Court in King v. Burwell (the second Obamacare case) that “oftentimes the meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.”[2]

In this context, the Constitution’s Treason Clause plainly provides only two types of treason—levying of war and aiding of the enemy.[3] It states: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”[4] Because treason is the sole crime that was viewed with such importance, so as to be included in America’s Constitution, its meaning is uniquely and particularly important.[5] Thus, its definition must be precise and specific. And this must be the case for all applications thereof.

When, however, Chief Justice John Marshall addressed the functions of treason, pursuant to Article III of the U.S. Constitution, he inserted a curious word into the mix, which no Court addressing treason has analyzed since—“assemblage.” In its context, he wrote, “[t]o constitute a levying of war, there must be an assemblage of persons for the purpose of effecting by force a treasonable purpose.”[6] But Marshall’s term of art, “an assemblage of persons,” is not within the text of the Treason Clause. This, thus, presents the question as to what effect, if any, Marshall’s surplusage had on treason charges for levying war.

This article, therefore, addresses if and when treason is committed by one party—acting alone—whether the Treason Clause permits such prosecution and whether John Marshall’s “assemblage” in his treason opinions poses an obstacle thereto. While other avenues of federal charges remain, treason is seldom used.[7] Marshall’s concept of the “assemblage of persons” suggests a parallel as to the criminal procedure common law concept of conspiracy, wherein “two or more persons,” via joint efforts, commit an act that is unlawful or leads to an unlawful result.[8] Conspiracy is, thus, what could be called a “plus one” crime. In light of Marshall’s interpretation, evidently, treason can also. But because that is not what Article III, Section 3 states, what follows is an analysis of the landmark cases for the Treason Clause and Second Amendment—“look[ing] at the cases from the bottom up rather than the top down.”[9]

That analysis reveals that the Roberts Court’s interpretation of the Second Amendment has changed the focus from militia dependent to individual dependent.[10] Dual analysis of these discrete aspects of the Constitution reveals a complementary nature in which the contemporaneous individual interpretations of the Second Amendment surmounted Marshall’s textual deviations to the Treason Clause. This article posits that the elements of treason inadvertently changed under the Marshall Court but fortuitously found course-correction with the Roberts Court’s twenty-first century individualization of the Second Amendment.

[1] See generally Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat) 304, 375 (1816) (Story, J., writing, “[l]anguage is essentially defective in precision; more so than those are aware of who are not in the habit of subjecting it to philological analysis. . . The language of the framers of the constitution . . . assumes, as a postulate, that wherever power is given it will be used or at least used, as far as the interests of the American people require it, if not from the natural proneness of man to the exercise of power, at least from a sense of duty, and the obligation of an oath.”); Holloway v. United States, 526 U.S. 1, 15–16 (1999) (Scalia, J. dissenting) (“It is so utterly clear in normal usage that [the word] ‘intent’ does not include conditional intent, that only an accepted convention in the criminal law could give the word a different meaning”); United States v. Santos, 553 U.S. 507, 532 (2008) (Alito, J., dissenting) (“[w]hen a word has more than one meaning, the meaning that is intended is often made clear by the context in which the word is used.”); Tyler v. Cain, 533 U.S. 656, 662 (2001) (Thomas, J., writing, “We do not, however, construe the meaning of statutory terms in a vacuum.”); Schindler Elevator Corp. v. U.S. ex rel. Kirk, 563 U.S. 401, 408 (2011) (Thomas, J., writing on behalf of the Court, “we must consider the provision’s ‘entire text,’ read as an ‘integrated whole.’”).

[2] King v. Burwell, 576 U.S. 473, 486 (2015).

[3] U.S. CONST. art. III, § 3.

[4] Id.

[5] See Morissette v. United States, 342 U.S. 246, 265 (1952) (“[T]reason—the one crime deemed grave enough for definition in our Constitution itself—requires not only the duly witnessed overt act of aid and comfort to the enemy but also the mental element of disloyalty or adherence to the enemy.”).

[6] Bollman, 8 U.S. at 75 (emphasis added); Burr, 25 F. Cas. at 89 (emphasis added).

[7] See generally B. Mitchell Simpson, III, Treason and Terror: A Toxic Brew, 23 ROGER WILLIAMS U. L. REV. 1, 17 (2018) (surmising “[e]ven though the Constitution prevents Congress from expanding the definition of treason by labeling other acts as treason, Congress may decide that other acts that could have been reasonably considered treasonous are felonies, and provide severe penalties for committing them.”). Professor Simpson also encourages, “[t]he modern state representing contemporary society not only has the right, but also the duty to enforce the loyalty of its members and those who enjoy its protection . . . Treason is still a valid legal tool and it should be used.”. Id. at 53.

[8] HENRY CAMPBELL BLACK, M.A., A DICTIONARY OF LAW: DEFINITIONS OF THE TERMS AND PHRASES OF AMERICAN AND ENGLISH JURISPRUDENCE, ANCIENT AND MODERN; INCLUDING THE PRINCIPAL TERMS OF INTERNATIONAL, CONSTITUTIONAL, AND COMMERCIAL LAW; WITH A COLLECTION OF LEGAL MAXIMS AND NUMEROUS SELECT TITLES FROM THE CIVIL LAW AND OTHER FOREIGN SYSTEMS 257 (1st ed. 1891) (“In criminal law a combination or confederacy between two or more persons formed for the purpose of committing, by their joint efforts, some unlawful or criminal act, or some act which is innocent in itself, but becomes unlawful when concerted action of the conspirators, or for the purpose of using criminal or unlawful means to the commission of an act not in itself unlawful.”).

[9] Adam Liptak, supra note 4.

[10] New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 22 (2022).

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LAW AND ECONOMICS OF COPYRIGHT IN CORPORATE INNOVATION AND WELFARE ENHANCEMENT 

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51 Rutgers L. Rec. 187 (2024) | WestLaw | LexisNexis | PDF

I. INTRODUCTION

“A COPYRIGHT WILL PROTECT YOU FROM PIRATES. And make you a fortune. If you have a PLAY, SKETCH, PHOTO, ACT, SONG or BOOK that is worth anything, you should copyright it. Don’t take chances when you can secure our services at small cost . . . .”1 This is an excerpt from an advertisement in 1906 by Columbia Copyright & Patent Co. Inc.2 Economic principles of wealth maximization3, risk aversion4, and cost-benefit analysis5 emanate from this advertisement urging creators to seek copyright protection. 

Copyright protects original works of creative expression.6 Copyright owners have the exclusive right to reproduce, publicly perform, or display the copyrighted work, create derivative works from the copyrighted work, and distribute copies of the copyrighted work.7 Edwin C. Hettinger reports that most copyrights are owned by institutions including corporations.8 Without copyright protection, many companies are threatened by competitors who copy the companies’ creative works at low cost and sell the copies at reduced prices.9 

Economic principles underlie the legal protection of copyright and corporations’ strategic plans for innovation. More than a century after Columbia Copyright & Patent Company’s advertisement in 1906, with the advent of novel technologies, analysis in law and economics remains vital in the evaluation of copyright policies for public welfare and corporate initiatives for innovation. 

This article first analyzes concepts of law and economics in the welfare justification of copyright (I). This article then applies this examination to critique the United States Supreme Court’s adjudication of a corporation’s initiative to provide the public with copyrighted audiovisual content through innovative technology (II). 

1 Advertisement for Columbia Copyright & Patent Company from The New York Clipper, Nov. 3, 1906, Library of Congress, United States of America, https://www.loc.gov/exhibits/bobhope/vaude.html#obj036 (last visited Mar. 29, 2024). 

2 Id. 

3 Richard A. Posner, Utilitarianism, Economics, and Legal Theory, 8 J. LEGAL STUDS. 103, 119 (1979). 

4 8.1 Risk Aversion and the Allocation of Risk, HARV. UNIV., https://cyber.harvard.edu/bridge/LawEconomics/risk.htm (last visited Mar. 29, 2024). 

5 PWC, UNDERSTANDING THE COSTS AND BENEFITS OF INTRODUCING A ‘FAIR USE’ EXCEPTION 14-15 (2016). 

6 Edwin C. Hettinger, Justifying Intellectual Property, 18 PHIL. & PUB. AFF. 31, 32 (1989). 

7 Id. at 34. 

8 See id. at 46. 

9 Id. at 47; see also Audio and Video First Sale Doctrine: Hearings on H.R. 1027, H.R. 1029, and S. 32 Before the Subcomm. of Cts., C.L. & the Admin. of Just. of the H. Comm. on the Judiciary, 98th Cong. 720 (1985) (referencing section titled “Tough to Get Compensation,” discussing movie-producing corporations’ difficulty in obtaining compensation in the face of individuals and entities who copy movies on cassettes at low cost). 

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