Volume 2014, No. 5


PDF link Voter Privacy in the Age of Big Data

By Ira S. Rubinstein

This Article suggests that political dossiers may be the largest unregulated assemblage of personal data in contemporary American life. It analyzes the main sources of voter data and the absence of privacy laws regulating the collection and use of such data. It also explores the potential privacy harms of voter microtargeting under the twin rubrics of information privacy (control over personal information) and political privacy (the personal sphere necessary for democratic deliberation and self-determination).

This Article advocates a modest proposal for addressing these harms, which has two components. The first is a mandatory disclosure and disclaimer regime requiring political actors to be more transparent about their use of voter microtargeting and related campaign data practices. The second is the enactment of new federal privacy restrictions on commercial data brokers that would equally apply to firms providing data consulting services to political campaigns. This proposal is necessarily modest because it operates in the shadow of the First Amendment. The Article concludes by defending both components of the proposal against likely constitutional objections.

PDF link The Evolution of Employment Discrimination Law: Changed Doctrine for Changed Social Conditions

By Michael Selmi

Employment discrimination law has long been ripe for updating. Many of the core cases regarding how discrimination is defined and proved arose in the 1970s in a very different era and were designed to address very different kinds of discrimination. Those early cases came on the heels of the Civil Rights movement, when overt discrimination and segregated workforces were the norm, and when men and women were routinely considered to have different abilities and interests.

Equally clear, those early cases invariably dealt with the remnants of overt segregation. To take a prime example, the well-known disparate impact case of Griggs v. Duke Power Company involved employment practices that were adopted the day the 1964 Civil Rights Act became effective by an employer that had previously confined African Americans to its least desirable jobs. Yet, the law that was established in Griggs remains—with slight modifications—the same today, even though the conditions that motivated the Court to create the disparate impact cause of action have clearly changed. In light of the progress our society has made, one can reasonably ask whether a practice that is facially neutral but has discriminatory effects should be treated as discrimination today and whether the justification for doing so remains the same today as it was 40 years ago. The answer to that question may very well be yes, but neither Congress nor the Court has had an open discussion regarding the relevance of the disparate impact theory for contemporary society, though as will be discussed in detail below, the Supreme Court has recently and implicitly suggested that the theory no longer fits.


PDF link After University of Texas Southwestern Medical Center v. Nassar, Another Call to Congress to Restore Title VII’s Protections

By Steven Curry

In University of Texas Southwestern Medical Center v. Nassar, the United States Supreme Court held that a “but-for” standard applies in cases alleging violations of Title VII of the Civil Rights Act of 1964’s antiretaliation provision. This imposes an onerous burden on plaintiffs alleging retaliation in contravention of Title VII. In fact, a similar burden was rejected during congressional debates 50 years ago prior to Title VII’s passage. While the Court adopted one plausible reading of the statute as amended in 1991, an alternative reading that applies Title VII in accord with Congress’s intent is also plausible. Therefore, this Note critiques the Nassar Court’s findings and calls upon Congress to restore Title VII’s protections.

Congress has historically responded swiftly to Supreme Court decisions narrowing Title VII protections. Most relevantly, with the Civil Rights Act of 1991, Congress codified the lesser “motivating factor” standard and provided remedies whenever discriminatory animus is proven. In light of the result in Nassar, Congress must once again restore Title VII’s protections. Should Congress fail to do so, the current standard raises the potential for retaliatory animus to go unchecked—a result that severely undermines Title VII’s enforcement.

This Note offers two potential legislative solutions. First, Congress can build off recent efforts—some of which were successful—to explicitly provide for a “motivating factor” standard in cases alleging retaliation-based claims under Title VII. Alternatively, drawing on the Civil Rights Amendment Act of 1991, Congress can provide for limited relief—an injunctive order and attorney’s fees—where retaliatory animus is proven, but the employer demonstrates that the same decision would have been made regardless of the impermissible retaliation. By adopting either proposed solution, Congress can alleviate at least some of the concern that retaliation may go unpunished after Nassar.


PDF link Wisconsin’s Qualified New Business Venture Program: Building on the Foundation to Maximize Entrepreneurial Growth

By Nicholas J. Herdrich

Start-ups are the future of American business and are essential to the nation’s transition from a manufacturing to a knowledge economy. A decade ago, the Wisconsin Legislature recognized the importance of start-ups and enacted the Qualified New Business Venture Program (“QNBV program” or “the program”). The QNBV program incentivizes early-stage investments in high-tech businesses through nonrefundable tax credits. While the program has seen some early success, Wisconsin’s economy has struggled and job growth has been limited.

This Comment analyzes the QNBV program and concludes that the Wisconsin Legislature must update the program to better compete for investment capital and to maximize Wisconsin’s entrepreneurial growth potential. This Comment argues that the legislature should update the program by (1) making the tax credits refundable to attract out-of-state investors, (2) providing additional tax credits for investments in accelerators nurturing certified businesses, (3) allowing early-stage businesses in restricted industries to rebut the presumption of disqualification from the QNBV program, and (4) providing additional tax credits for investments in specific industries. While these updates to the program will allow Wisconsin to remain competitive for early-stage investments, this Comment concludes that Wisconsin must undergo a more significant legal and cultural undertaking to create a community that mentors and invests in entrepreneurs.