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Volume 64
“Please Note: You Have Waived Everything”: Can Notice Redeem Online Contracts?

By Cheryl B. Preston | 64 Am. U. L. Rev. 535 (2015)


Online consumers are largely unaware of the extent to which their actions are governed by legal terms in the form of clickwraps or browsewraps.  These contracts are enforced without any evidence of knowing assent to the terms but only if the consumer has some notice that a contract exists.  The standards for notice are low and consumers routinely click and browse without forming a single thought relative to the legal obligations that arise with online conduct—legal obligations that frequently would not arise with procuring the same goods and services in the real world.  Commentators have been scrambling hopelessly to propose various schemes for bringing home to consumers the fact that they are entering enforceable contracts.

Reforming the Grand Jury to Protect Privacy in Third Party Records

By Andrew E. Taslitz & Stephen E. Henderson 64 Am. U. L. Rev. 195 (2014)

In late 2014, two grand juries returned controversial no bill decisions in police killings, one in Ferguson, Missouri, and one in New York City. These outcomes have renewed calls for grand jury reform, and whatever one thinks of these particular processes and outcomes, such reform is long overdue. One logical source of reform to better respect privacy in records, which would have incidental benefits beyond this privacy focus, would be the newly enacted American Bar Association Standards for Criminal Justice on Law Enforcement Access to Third Party Records (LEATPR).

To Read or Not To Read: Privacy within Social Networks, the Entitlement of Employees to a Virtual “Private Zone,” and the Balloon Theory

Dr. Shlomit Yanisky-Ravid | 64 Am. U. L. Rev. 53 (2014)

Social networking has increasingly become the most common venue of self-expression in the digital era.  Although social networks started as a social vehicle, they have recently become a major source for employers to track personal data (“screening”) of applicants, employees, or former employees.

ESSAY: Griswold and its Surroundings: The 1963, '64, and '65 Terms

By L.A. Powe, Jr.Am. U. L. Rev. 1443 (2015)

There were four dominant themes of the mature—post-Frankfurter—Warren Court. First and foremost was ending Jim Crow in the South, a project that began with Brown v. Board of Education. Second was promoting democracy through “one person, one vote.” The third was the reform of the criminal justice system by requiring it to conform to national best practices. The last theme was expanding freedom of expression by ending McCarthy-era persecutions, liberating the depiction of sex from the Victorian Era ideal, and guaranteeing the right to vigorously criticize government. Of course there was considerable overlap among the themes, a point especially clear in the case of race and the criminal justice system. What makes Griswold v. Connecticut4 stand out so sharply is that it does not involve any of these themes and that it led to no further Warren Court decisions on the issue. The latter point is not surprising, as only the three New England states where the Catholic Church held undue influence had anti-contraceptive laws, and the Church, holding a losing hand, immediately capitulated. Thereafter, private entities like Planned Parenthood could offer contraception.

D(E)volving Discretion: Lessons from the Life and Times of Secure Communities

By Juliet P. Stumpf | 64 Am. U. L. Rev. 1259


The devolution of immigration authority to line officers, touted as a strength of the Secure Communities program, planted the seeds of the program’s downfall.  Rising from the ashes of Secure Communities, the Priority Enforcement Program (PEP) set priorities for removal and also unveiled a potential antidote to the devolution of agency discretion.  This Article details the rise of Secure Communities and describes the devolution of discretion that ultimately undermined the program.  It then spotlights a little-noticed attribute of the PEP—one that addresses head-on Secure Communities’ devolution of enforcement discretion to the lowest level.  PEP attempts to recapture federal discretion to make macro-level policy decisions about immigration enforcement by siphoning discretion up the chain to higher-level federal officials.  This hydraulic experiment in recapturing agency discretion will ultimately determine whether immigration enforcement priorities are doomed to devolution or poised to find a perch on higher ground.

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