Exploring New Approaches to Unsettled Legal Questions

Tag: 2026-2027

Publications from the 2026–2027 academic year

Coordination Without Conversation: Reciprocal Data-Pooling and Algorithmic Price-Fixing Under Section 1

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by Malcolm Girand*

Section 1 of the Sherman Act reaches only concerted action, whereas parallel outcomes that reflect independent business judgment remain lawful. The proliferation of shared algorithmic pricing tools has strained that line, and courts have divided over what a plaintiff must plead to establish an unlawful agreement. Some have dismissed these claims at the threshold, treating the absence of a clearly alleged agreement as dispositive and requiring allegations that virtually negated independent explanations at the pleading stage. This Contribution argues that such an approach misreads Bell Atlantic Corp. v. Twombly, importing an evidentiary demand associated with trial and summary judgment into Rule 12. It further argues that courts should recognize reciprocal algorithmic data-pooling—competitors contributing their own nonpublic, competitively sensitive, current data to a common pricing system that uses those data in generating recommendations for known rivals, with each contributor aware of the reciprocal arrangement—as a plus factor to infer agreement from parallel conduct. Because such reciprocal algorithmic data-pooling is difficult to explain as ordinary unilateral conduct and strongly suggests mutual assurance, it ordinarily suffices—joined with parallel conduct and the remaining elements of the claim—to support a plausible inference of agreement and reach discovery.

Geofence Warrants After Chatrie: A Proposal for a Model Warrant

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by Charles Kim*

The Supreme Court’s decision in Chatrie v. United States fundamentally altered the constitutional landscape governing so-called “geofence warrants” by holding that when the government acquires comprehensive location history data, it must first obtain a warrant which satisfies the Fourth Amendment’s probable cause and particularity requirements. But Chatrie left a critical question unanswered: how would a constitutionally valid geofence warrant meet those requirements? This Contribution argues that the warrant at issue in Chatrie fell short because it authorized an increasingly intrusive search while leaving nearly every consequential decision to law enforcement officers rather than a neutral magistrate. Although anonymization of location data can substantially mitigate the privacy concerns associated with its disclosure, it is meaningful only if accompanied by safeguards that prevent premature de-anonymization. Building on these principles, this Contribution proposes a model geofence warrant that would require renewed judicial authorization before each expansion of the search. By restoring judicial oversight, the model warrant better reconciles legitimate law enforcement needs with the Fourth Amendment’s historical commitment to protecting privacy from unbounded government discretion.

Testifying by Fingerprint: Why the Government Can’t Force You to Unlock Your Phone

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by Annemarie Ardy*

Cell phones have become ubiquitous in modern life; they are often carried everywhere and used to facilitate nearly every activity. Yet their incredible convenience is a double-edged sword: when searched by law enforcement, the wealth of information contained on a cell phone can paint a more intimate and fine-grained portrait of a person’s life than 24/7 surveillance. Passcodes and biometric scanners—mechanisms that permit a user to unlock a device through its recognition of the user’s face or fingerprint—stand in the government’s way, but only so long as courts do not permit the government to compel people to unlock their phones. Although the compulsion of a passcode clearly violates the Fifth Amendment’s Self-Incrimination Clause, courts have split on the question of whether compulsion of biometric scanning receives similar protections. This Contribution argues that courts should treat the use of biometric scanners as categorically testimonial and therefore protected by the Self-Incrimination Clause. Biometric scanners convey information that is classically testimonial, and to hold otherwise would pose unacceptable risks to personal privacy.

The Johnson Amendment After Catholic Charities: The Return of Larson v. Valente Strict Scrutiny

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by Christopher Cokinos*

The Supreme Court’s decision in Larson v. Valente established that laws creating explicit preferences among religious denominations must be analyzed under strict scrutiny for Establishment Clause violations. For more than four decades after Larson was handed down, the Court left many questions open as to what an explicit denominational preference was and whether Larson strict scrutiny was even a viable test. However, following Catholic Charities v. Wisconsin Labor and Industrial Review Commission, where the Supreme Court used the Larson strict scrutiny analysis as the core of its decision, the vitality of Larson is clear. With this newfound life, both the government and religious organizations are hoping to strike down the Johnson Amendment: a ban on direct political participation by 501(c)(3) organizations, including churches. This Contribution argues that such a challenge to the Johnson Amendment does not fit within the Larson doctrine, since, although Larson is rather unclear in its applicability and whether strict scrutiny is the operative test, the Johnson Amendment is not a denominational preference as contemplated by the relatively thin Larson body of case law.

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