Virtual Marriage

October 20, 2025
Family Law, Internet

Jordan Strathmann, MJLST Staffer

Throughout U.S. history, family law has continuously adapted to society’s evolving values, especially within the context of marriage. As a result, formal, ceremonial rites shifted towards doctrines that prioritize the autonomy and intent of the marrying parties.[1] For instance, one of the earliest developments in U.S. marriage was the abolition of coverture and the institution of the Married Women’s Property Acts, which helped ensure that women retained independence within their marriages, rather than occupying a subordinate role to their husbands.[2] Later, restraints on people’s choice to marry, such as those on interracial and same-sex couples, were struck down as violations of the 14th Amendment.[3] Hence, the evolution of marriage laws underscores the principle that it is the parties of a relationship, not their families or the State, who have the sole responsibility for deciding whether to marry, who to marry, and what the terms of their relationship will be.[4]

Accordingly, just as family law has adapted to societal changes, it should also evolve in response to technological advancements, especially when those changes promote the policy values of autonomy and the enhancement of freedom of choice. Digital technology, particularly over the past few decades, has become a vital component of the modern lifestyle.[5] From professional settings, such as schools and the workplace, to social interactions with friends and family, our phones, laptops, social media accounts, and internet access have become essential to participation in society.[6] The deepening of societal dependence on technology has altered the way people foster and maintain intimate relationships, specifically diminishing the importance of “direct face-to-face contact.”[7] The rise of online dating exemplifies this modern shift to digital intimacy.[8] Furthermore, changes in the social mobility of families, and equality in economic capabilities and working demands between the spouses, evidence the dwindling importance of direct personal interaction in maintaining intimacy within a relationship.[9] Instead, the “[i]nternet and mobile applications such as email, instant messaging, and video chat have become the mainstays of daily social contact with family and friends.”[10]

Hence, family law’s propensity to adapt to society, combined with its policy of encouraging equality and autonomy between partners in a relationship, and the modern predilection toward technology, suggests that the next logical step for family law is to authorize virtual marriage. In other words, more state legislatures should allow for couples to marry online rather than requiring an in-person ceremony or proceeding. Just as courts and legislatures have redefined marriage to reflect evolving notions of equality and accessibility, permitting digital ceremonies expands the institution to reflect modern realities of technology and global connectivity. The practical advantages of allowing virtual marriages, such as convenience, affordability, and flexibility for working parties, mirror family law’s broader commitment to ensuring that function of the relationship prevails or formalities.[11] Moreover, allowing couples to choose the form of their ceremony aligns with family law’s policy of minimizing state intervention and leaving to the marrying parties privacy in their personal matters.[12]

Critics may argue that the convenience and flexibility offered by online marriages undermine the institution’s integrity.[13] Some may even question the very legitimacy of online marriages in the absence of a face-to-face proceeding. However, the Supreme Court has already made clear that the substance of the marrying parties’ relationship should prevail over formalistic barriers.[14] Furthermore, eliminating the necessity of an in-person proceeding to solemnize a marriage is by no means novel; proxy marriages have been available to couples since the time of Late Roman Law.[15] While the vast majority of U.S. states have yet to permit virtual marriages, one state is ahead of the curve: Utah.

Under Utah Code § 81-2-302, a marriage license must be issued to the marrying parties by a Utah county clerk, and the officiant of the marriage must be physically present within the state of Utah at the time of solemnization of the marriage. However, the license application, license delivery, receipt, and the marriage ceremony can all be done virtually.[16] Utah still requires applicants to provide the County Clerk with pertinent information to verify their identities, including “full names, social security numbers, addresses, dates and places of birth, parents’ names, birthplaces of the parents, and the age, legal names, and identities of each applicant.”[17] Hence, although the marriage process is conducted online, safeguards are in place to prevent fraud or other illegal marriages. Utah’s current laws on marriage proceedings provide a reliable framework for other states to incorporate virtual marriages into their state laws.

As our world becomes increasingly digitized, with work meetings, school days, and even important business conferences and court proceedings being held online, it should not be seen as a drastic step for society and state legislatures to start accepting online marriage applications and ceremonies. Furthermore, marriage has always been a dynamic element of family law, adapting to societal norms and allowing the intent of the marrying parties to prevail over traditional requirements. Thus, in modern society, where individuals are more independent, mobile, and accustomed to relying on digital technology to handle matters of the utmost importance, states should consider amending their marriage laws to allow for virtual proceedings.

 

Notes

[1] See Obergefell v. Hodges, 576 U.S. 644, 650 (2015) (stating that “[t]he ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society[,]” in the Court’s discussion of the Nation’s changing perspectives on marriage through history).

[2] Married Women’s Property Acts, Britannica, https://www.britannica.com/event/Married-Womens-Property-Acts-United-States-1839 (last visited Oct. 9, 2025) (explaining that Married Women’s Property Acts “expanded the rights of married women to act as independent agents” from their husbands); see also Obergefell at 659–60 (explaining that the abandonment of coverture and expansion of women’s legal rights “worked deep transformations” and strengthened the institution of marriage).

[3] See Obergefell at 665 (holding that the Court’s analysis of the 14th Amendment “compels the conclusion that same-sex couples may exercise the right to marry”); see also Loving v. West Virginia, 388 U.S. 1, 11–12 (1967) (holding that “[t]here can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause”).

[4] See Elizabeth S. Scott, Social Norms and the Legal Regulation of Marriage, 86 Va. L.  Rev. 1901, 1905 (2000) (explaining that the “legal framework of marriage” has been deregulated through the imposition of egalitarian principles and abolition of legally mandated marital commitments through no-fault divorce laws); see also Nicola Barker, The Evolution of Marriage and Relationship Recognition in Western Jurisdictions, Progress of the World’s Women at 8–9 (Oct. 2018), https://www.unwomen.org/sites/default/files/Headquarters/Attachments/Sections/Library/Publications/2018/Discussion-paper-Evolution-of-marriage-and-relationship-recognition-in-western-jurisdictions-en.pdf (explaining that the form of marriage and family has become less important to the state).

[5] See Cherie Foo, How Does Technology Influence Our Lives, Sogolytics, https://www.sogolytics.com/blog/how-technology-influences-us/ (“Technology has become an integral part of our lives, revolutionizing the way we work, communicate, and live. From smartphones to smart homes, technology has infiltrated every corner of our existence.”) (last updated June 28, 2024).

[6] Id.

[7] See Anna M. Lomanowska & Matthieu J. Guitton, Online Intimacy and Well-Being in the Digital Age, 4 Internet Intervention 138, 139 (2016), https://pmc.ncbi.nlm.nih.gov/articles/PMC6096121/pdf/main.pdf (explaining that “physical proximity and direct face-to-face contact have become less prevalent” with society’s shift towards utilizing “[i]nternet-based communication and social networking applications” to “actualize intimacy”).

[8] According to a 2022 Pew Research survey, approximately one in three adults under the age of thirty reported using a dating site or app. See Emily A. Vogels & Colleen McClain, Key Findings About Online Dating in the U.S., Pew Rsch. Ctr. (Feb. 22, 2023), https://www.pewresearch.org/short-reads/2023/02/02/key-findings-about-online-dating-in-the-u-s/. The survey also revealed that approximately one in ten adults under the age of 30 who were married, living with a partner, or in a committed romantic relationship met their current partner through a dating site or app. Id.

[9] See generally Frank F. Furstenburg, Family Change in Global Perspective: How and Why Family Systems Change, 68 Future Healthy Fams. (Special Issue) 326 (2019) (describing how “the most important” change in the family structure was “the transition from a predominately traditional subsistence economy to a production-oriented economy transformed” which “expand[ed] a job-based economy that favors younger and more geographically mobile individuals).

[10] See Anna M. Lomanowska & Matthieu J. Guitton supra note vii at 139.

[11] Rebecca Aviel, A New Formalism for Family Law, 55 Wm. & Mary L. Rev. 2003, 2003 (2014) (explaining that, despite family law becoming more formalist in some respects, with regard to recognition of marital relationships “family law is experiencing a trend toward more flexible decision making that prioritizes functional assessment of relationships above formal legal status”); see also June Carbone & Naomi Cahn, Uncoupling, 53 Ariz. St. L.J. 1, 27 (2021) (explaining that “the new system [of legal regulation of marriage] rewards those who manage the human capital investments necessary to achieve labor market nimbleness and family relationships based on flexibility, reciprocity and trust. . .”).

[12] See Zablocki v. Redhail, 434 U.S. 374, 386 (1978) (explaining that the right to privacy within family life also extends to the choice of entering marriage).

[13] U.S. v. Windsor, 570 U.S. 744, 809 (2013) (describing how other critics of substantial changes in marriage, specifically same-sex marriage in this case, believe that those changes “will seriously undermine the institution of marriage”) (Alito J., dissenting).

[14] Obergefell at 666–67 (describing marriage as “an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects”).

[15] Ernest Lorenzen, Marriage By Proxy and the Conflict of Laws, 32 Harv. L. Rev. 473, 473 (1918) (asserting that, in answering the question of whether American soldiers abroad during the ongoing World War could contract a marriage by proxy, it should be considered “[t]hat marriage by proxy was allowed in the late Roman law and in the Canon Law”).

[16] See Marriage – Frequently Asked Questions, Utah County Clerk, https://www.utahcounty.gov/dept/clerk/marriage/faq.html (last visited Sept. 27, 2025); see also Marriage Ceremonies, Utah Cnty. Clerk https://www.utahcounty.gov/dept/clerk/marriage/ceremony.html (last visited Sept. 27, 2025).

[17] Utah Code § 81-2-303.

The MLB’s Automated Ball-Strike System: The Forces Pushing Baseball Toward Full Automation

October 14, 2025
Artificial Intelligence, New Technology, Sports Law

Xavier Savard, MJLST Staffer

First shown regularly on Major League Baseball (“MLB”) broadcasts in 1997, the glowing strike zone allowed television viewers to see what umpires missed.[1] Despite technological reforms to umpiring, the most fundamental calls in professional baseball, balls and strikes, have been left entirely to human judgment since 1869.[2] In September 2025, the MLB announced the rollout of the Automated Ball-Strike System (“ABS”), allowing teams to challenge pitches that the system will then review.[3] However, this challenge-based model represents solely a transitional step towards full automation. Due to pressures surrounding legalized sports betting, fairness, and broader advances intechnological developments, a fully automated system is increasingly likely in the future, despite concerns regarding collective bargaining and player pushbacks.

Diligently tested by the MLB since 2022, ABS is a high-speed camera system that locates the ball in relation to an individualized batter’s box and translates the location data over a private network, allowing a pitcher, catcher, or batter to challenge an umpire’s call.[4] Then, within fifteen seconds, the system reviews the pitch data and analyzes whether the ball passes within the tailored strike zone within fifteen seconds.[5] If the challenge is successful, the team retains its challenge; if not, the team loses it.[6] Teams start with two challenges.[7] According to the MLB’s 2024 Spring Training testing, players favor the challenge system because it retains the human element of the game.[8]

As a fan, I admit that I agree with the players. I like human umpires. The subjective element adds a certain unpredictability and excitement to the game, giving baseball its flair. While frustrating at times, this quality makes the game feel historic and connected to humanity. Yet, enjoying the human element does not change where baseball is heading.

The MLB has an implicit duty, derived from its Constitution and the Official Baseball Rules, to strive for fairness and accuracy in baseball.[9] This fiduciary-like duty is particularly evident in the “best interests of baseball” clause, which grants the MLB Commissioner broad authority to act in the interest of maintaining baseball’s integrity.[10] While this duty has historically been fulfilled through human umpires, the MLB’s tolerance of preventable errors that technology can reduce indisputably risks the integrity of the game.

The MLB has partnered with various sports betting organizations,[11] which raises its duty to employ a fairer and more accurate umpiring system. While there is some argument that the integrity of the game includes the presence of human umpires,[12] the MLB and its fans’ substantial financial entanglement with official partnership outweighs that argument. Now, accuracy is no longer just ideal but is a business requirement to preserve the reputation of the MLB and the fans’ expectations. When the MLB profits from wagers through official partnerships on games and fans risk significant sums of money, the tolerance for officiating errors should decrease. While umpires call roughly 93% of pitches correctly, the remaining 7% can drastically affect the game.[13] For example, in Game 4 of the 2025 NLDS matchup between the Dodgers and the Phillies, the umpire called a fourth ball on a clear strike, allowing a walk.[14] That batter eventually scored, and the pitcher’s team lost.[15] While it is difficult to know what would have happened had the pitch been called a strike, the truth is, we should not have to wonder. The pitch simply should have been called a strike in the first instance. Given how efficient and accurate the ABS is, the MLB should remove errors like these from the game through a full ABS.

These concerns are only magnified by the growth of sports betting is not going away anytime soon. Since the Supreme Court’s decision in Murphy v. NCAA in 2018, the sports betting industry has grown from $400 million in revenue in 2018 to $13.71 billion in revenue by 2024.[16] As the MLB continues to earn more revenue from its partnerships, the reliance on human umpiring compromises fairness and public trust in the game.

Additionally, while traditionalists argue that baseball is a game steeped in tradition, the game has always changed to increase fairness or to strengthen its commercial value. In 1935, the MLB had its first-ever night game, powered by innovative lighting equipment to allow spectators to come to the game after work.[17] Decades later, baseball adopted instant replay in 2008, which it drastically expanded upon in 2014.[18] More recently, in 2023, the MLB implemented a pitch clock.[19] These examples show that baseball’s tradition does not actually stop it from implementing technology to promote fairness and marketability.

Yet, the challenge-based system is only a temporary solution because it only corrects a minority of errors, those that players deem valuable enough to challenge. In the past study, the players challenged about 2-3% of calls, with about half of the challenges being successful.[20] That means another 5.5% of incorrect calls remain. Put another way, the challenge-based system only corrects 20% of incorrect calls are corrected. Challenge-based ABS still simply does not ensure maximum accuracy, failing to satisfy the MLB’s fairness obligations when full ABS is available.

One major obstacle to full ABS is the Major League Baseball Umpire Association (“MLBUA”). While the 2019 and 2024 collective bargaining agreements indicate that the MLBUA has been pro-ABS to a certain extent,[21] the MLBUA is likely to oppose full-ABS. Even in a world with full ABS, umpires are still necessary to make certain calls around the bases. Due to union protections under the National Labor Relations Act (“NLRA”),[22] implementing a fully automated system could pose a significant hurdle for the MLB.

Second, a full ABS may face resistance from players because it changes some important aspects of the game for pitchers and catchers. There is some evidence that veteran pitchers get a wider strike zone that they have “earned,” and catchers spend years developing their pitch-framing abilities.[23] Full ABS would reduce the impact of these skills. Yet, all rule changes impact how players play baseball, and history shows that fairness-based rule changes often improve the game for the better. In 2021, for example, the MLB began enforcing Rules 3.01 and 6.02(c), which suspend pitchers for using sticky substances on their hands.[24] Because some players were getting an unfair advantage by the way they played the game, the MLB enforced the rule. Simply put, just because rule changes alter how players have historically done their job does not mean it is not good for the integrity of the game.

A full ABS implementation from the challenge system is entirely consistent with baseball’s long-standing technological evolutions that promote integrity and fairness. It is merely a continuation of that pattern, necessitated by legalized sports betting and immense financial interests at stake. Still, collective bargaining obligations and player pushbacks ensure the future transition will be difficult.

 

Notes

[1] How Accurate is the Baseball Strike Zone Box on TV, Baseball Scouter, https://baseballscouter.com/baseball-strike-zone-on-tv/ (last visited Sept. 29, 2025).

[2] History.Com Editors, National League of Baseball is Founded, History (last updated May 25, 2025), https://www.history.com/this-day-in-history/February-2/national-league-of-baseball-is-founded.

[3] MLB Announces ABS Challenge System Coming to the Major Leagues Beginning in the 2026 Season, MLB (Sept. 23, 2025), https://www.mlb.com/press-release/press-release-mlb-announces-abs-challenge-system-coming-to-the-major-leagues-beginning-in-the-2026-season.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Theo DeRosa, MLB Releases Spring Training ABS Challenge results, MLB (Mar. 26, 2025), https://www.mlb.com/news/automated-ball-strike-system-results-mlb-spring-training-2025?msockid=2b62cc077eaa61eb013dd8dc7f816092.

[9] See Major League Baseball Constitution, MLB (2000), https://sports-entertainment.brooklaw.edu/wp-content/uploads/2021/01/Major-League-Baseball-Constitution.pdf; Official Baseball Rules, MLB (2025), https://mktg.mlbstatic.com/mlb/official-information/2025-official-baseball-rules.pdf.

[10] Richard Justice, ‘Best Interests of Baseball’ a Wide-Ranging Power, MLB (Aug. 1, 2023), https://www.mlb.com/news/richard-justice-best-interests-of-baseball-a-wide-ranging-power-of-commissioner/c-55523182#:~:text=In%201921%2C%20the%20owners%20defined,exactly%20what%20it%20sounds%20like.

[11] Sam Carp, MLB Adds FanDuel as Third Sports Betting Partner, SportsPro (Aug. 16, 2019), https://www.sportspro.com/news/mlb-fanduel-sports-betting-sponsorship/.

[12] See Larry Gerlach, History of Umpiring, Steve O’s Umpire Res., https://www.stevetheump.com/umpiring_history.htm (last visited Oct. 9, 2025).

[13] Davy Andrews, Strike Three?! Let’s Check in on Umpire Accuracy, FANGRAPHS (Feb. 1, 2024), https://blogs.fangraphs.com/strike-three-lets-check-in-on-umpire-accuracy/.

[14] Zach Bachar, Phillies’ Sanchez Says Umpire Apologized for Crucial Missed Strike 3 Call vs. Dodgers, Bleacher Rep. (Oct. 10, 2025), https://bleacherreport.com/articles/25259222-phillies-sanchez-says-umpire-apologized-crucial-missed-strike-3-call-vs-dodgers.

[15] Id.

[16] Ehtan Mordekhai, The Aftermath of Murphy v. NCAA: State and Congressional Reactions to Leaving Sports Gambling Regulation to the States, CARDOZO J. ARTS & ENT. L.J. (Oct. 17, 2023), https://cardozoaelj.com/2023/10/17/the-aftermath-of-murphy-v-ncaa-state-and-congressional-reactions-to-leaving-sports-gambling-regulation-to-the-states/.

[17] Brian Murphy, 88 Years Ago, AL/NL Baseball Finally Saw the Light, MLB (May 23, 2024), https://www.mlb.com/news/first-night-game-in-al-nl-history.

[18] Instant Replay, BASEBALL REFERENCE, https://www.baseball-reference.com/bullpen/Instant_replay (last visited Sept. 29, 2025).

[19] Pitch Timer (2023 Rule Change), MLB, https://www.mlb.com/glossary/rules/pitch-timer?msockid=2b62cc077eaa61eb013dd8dc7f816092, (last visited Oct. 9, 2025).

[20] DeRosa, supra note viii.

[21] Dylan A. Chase, MLB, MLBUA Reach Tentative Labor Agreement, MLB Trade Rumors (Dec. 21, 2019), https://www.mlbtraderumors.com/2019/12/mlb-mlbua-reach-tentative-labor-agreement.html; Manny Randhawa, MLB Reaches New CBA Agreement with Umpires Association, MLB (Dec. 23, 2024), https://www.mlb.com/news/mlb-umpires-association-reach-collective-bargaining-agreement?msockid=2b62cc077eaa61eb013dd8dc7f816092.

[22] U.S. Dep’t Lab., What Are My Employees’ Rights Under the National Labor Relations Act (NLRA)?, https://beta.dol.gov/policy-governance/protections-rights/unions-collective-bargaining/employee-rights-nlra (last visited Oct. 9, 2025).

[23] Nayima Riyaz, “Change Is Always Tough” – MLB Veteran Voices Concern Over ABS System Amid Growing Popularity, Essentially Sports (Feb 26, 2025), https://www.essentiallysports.com/mlb-baseball-news-change-is-always-tough-mlb-veteran-voices-concern-over-abs-system-amid-growing-popularity/; Veteran Bias in MLB Umpiring: Hitters, Quantum Sports (Feb. 24, 2020), https://www.quantumsportssolutions.com/blogs/baseball/veteran-bias-in-mlb-umpiring-hitters.

[24] MLB Announces New Guidance to Crack Down Against Use of Foreign Substances, Effective June 21, MLB (June 15, 2021), https://www.mlb.com/press-release/press-release-mlb-new-guidance-against-use-of-foreign-substances?msockid=2b62cc077eaa61eb013dd8dc7f816092.

Beyond the Business Case for Lawyer Well-Being: Tracking Individual Health Metrics

September 30, 2025
Health, Law Firms, Social Welfare

Noah Leinen, MJLST Staffer

Introduction and Context

“[T]he commodification of the legal profession is an ‘unambiguous contributor’ to the pervasiveness of lawyer distress.”[1] In other words, associates suffer for each dollar a firm earns. Historically, lawyers were more likely to be anxious, interpersonally insensitive, isolated, obsessive-compulsive, and hostile.[2] And, at least as of the 1990s, we were more likely to suffer from depression, phobic anxiety, and paranoid ideation as well.[3] Although language has changed, lawyers today are more suicidal, more likely to be problem drinkers, depressed, and stressed.[4] And yes, we are still anxious.[5] So, we are unhappy and unhealthy (and undoubtedly still unethical).[6]

Who cares? Young professionals, like me, for one. But firm executives ought to as well because of the increase in well-being initiatives.[7] If these initiatives don’t actually help associates, firms are simply burning cash.

Generally speaking, promoting wellness is a good investment as it reduces attrition.[8]  Healthy people make a healthy firm, which is more stable and productive, making them more likely to resist drastic market shifts by increasing associate retention over the long run. But not all strategies are equal, and optimizing such initiatives is an ongoing project.

Instead of dumping money into inefficient strategies, like hiring a well-being speaker for a brief Tuesday lunch hour, firms should invest in individual-based well-being strategies. One way to increase individual health is to track it. Thus, personal health metric devices ought to be a standard benefit for new associates. The question, however, is how a firm might improve individual wellness and well-being.

Methods of Measuring Well-Being

Although there is no definition of well-being, the scientific community discusses it as a composite of subparts, including but not limited to economic, emotional, physical, and spiritual dimensions.[9] Another definition might include interpersonal, communal, and occupational wellness as additional elements. Simply put, well-being is not one-dimensional.

Well-being is also difficult—if not downright impossible—to meaningfully measure. One might try a social welfare analysis from microeconomics to capture collective well-being, for example, by summing the total wealth, utility, or capability of a community as a proxy for well-being. This could provide insight into a community’s wellness. As a proxy, this is not useless, but it is unlikely to give a strong measuring stick for comparing the collective well-being of two firms. Alternatively, one might try to record, qualitatively, each individual’s satisfaction of the hierarchy of needs as conceived by Maslow. Besides economic welfare analysis and psychology, human health metrics may also provide meaningful insights. Finally, long-term friendships are really, really good for human longevity and healthspan.[10] Conversely, isolation is clearly detrimental to one’s well-being.[11] Measuring an individual’s significant relationships (their depth, consistency, and length) might therefore also serve as a useful proxy for estimating well-being. Regardless of whether the analysis is economic, psychological, or sociological in nature, well-being is complex. Despite this complexity, firms still try to improve it.

Current Methods and Strategies of Improving Well-Being

From wellness speakers to weeklong celebrations, titled “Well-being Week”, firms have a host of strategies for improving the health of their workers. Some firms have well-being committees consisting of self-selected employees who provide educational wellness opportunities for fellow colleagues.[12] Other firms hire dedicated well-being directors to spearhead internal well-being initiatives, both to provide similar educational opportunities and also destigmatize dialogue regarding mental health issues.[13] Finally, the ABA has published a Well-Being Toolkit, which includes an eight-step action plan for legal employers, along with other lawyer well-being resources, such as book recommendations, public speakers, and consultants.[14] Firms have several methods for improving well-being; however, one uncommon approach is distributing individual health metric devices.

Firm-Wide Distribution of Individual Health Metric Devices

Beyond books, speakers, and dedicated committees of employees, one comparatively simple step that has not been widely adopted is enabling and encouraging individuals to track their health metrics. From a broad meta-survey in 2022, activity trackers were found to generally improve physical activity and health.[15] Such behavioral changes persisted for upwards of six months.[16] Fitness trackers, such as a Whoop Band or Oura Ring, can serve as physical activity trackers.

Health metric monitors often record sleep data as well. Sleep monitoring is correlated with an improved perception of sleep quality and reduced disturbances.[17] Instead of being caused by the health metric monitor, however, this correlation could be caused by an increase in physical activity.[18] The perception of improved sleep may simply have occurred after participants started working out more.[19] So, if the goal is to improve sleep, tracking physical activity data instead of sleep data is a safer investment. Thus, firms should consider explicitly including physical activity tracker devices in benefits packages, with the goal of improving individual physical well-being, which, when aggregated, is likely to improve firm well-being.

Conclusion

Well-being initiatives are a step in the right direction toward improving lawyer well-being. Given that a firm’s number one resource is its workers, improving individual health can improve overall collective firm health. As tracking individual health metrics via personal fitness devices is likely to lead to an increase in individual well-being, then in the name of a more productive and stable firm, personal fitness devices should be provided to every associate.

 

Notes

[1] Jarrod Reich, Capitalizing on Healthy Lawyers, The Practice (Mar. 2020), https://clp.law.harvard.edu/knowledge-hub/magazine/issues/approaching-lawyer-well-being/capitalizing-on-healthy-lawyers/.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Patrick Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Member of an Unhappy, Unhealthy, and Unethical Profession, 52 Vand. L. Rev. 871, 871 (1999).

[7] See e.g. Well-Being Pledge Campaign, ABA, https://www.americanbar.org/groups/lawyer_assistance/well-being-in-the-legal-profession/well-being-pledge-campaign/ (last visited Sept. 22, 2025, 3:05 PM).

[8] Reich, supra note 1.

[9] Tara Bautista, et. al., What is Well-Being? A Scoping Review of the Conceptual and Operational Definitions of Occupational Well-being, 7 J. Clinical & Translational Sci. 1, 1, 8 (2023).

[10] Zara Abrams, The Science of Why Friendships Keep Us Healthy, 54 Monitor on Psych. (4) (June 1, 2023), https://www.apa.org/monitor/2023/06/cover-story-science-friendship.

[11] Id.

[12] Operationalizing Well-Being, The Practice, (Mar. 2020), https://clp.law.harvard.edu/knowledge-hub/magazine/issues/approaching-lawyer-well-being/operationalizing-well-being/ (last visited Sept. 22, 2025, 3:08 PM).

[13] Id.

[14] Anne Brafford, Well-being Toolkit for Lawyers and Legal Employers, ABA, (Aug. 2018), https://www.americanbar.org/groups/lawyer_assistance/well-being-in-the-legal-profession/well-being-pledge-campaign/.

[15] Ty Ferguson et. al., Effect of Wearables on Sleep in Healthy Individuals: A Systematic Review of Systematic Reviews and Meta-analyses, 4 Lancet Digital Health (8), e615 (2022).

[16] Id.

[17] Sarah Berryhill et. al., Effect of Wearables on Sleep in Healthy Individuals: a Randomized Crossover Trial and Validation Study, 16 J. Clinical Sleep Med. 5, 775 (2020).

[18] Id.

[19] Iuliana Hartescu et. al., Increased Physical Activity Improves Sleep and Mood Outcomes in Inactive People with Insomnia: a Randomized Controlled Trial, 24 J. Sleep Rsch. 5, 526 (2015) (discussing a strong correlation between increased physical activity with improved sleep).

New British Antitrust Legislation Provide Model for U.S. Tech Regulation

September 24, 2025
Antitrust, EU Law, International Law, Regulatory

Carson Holmgren, MJLST Staffer

The rapid rise of generative AI in recent years has boosted key players in the field to record-breaking valuations.[1] Yet many major firms lack the server capacity needed to operate their models at scale and rely heavily on third-party cloud service providers (“CSPs”) to meet their computing needs.[2] This dependency has fueled massive growth in the CSP industry, with annual global revenue predicted to exceed $400 billion in 2025[3] and $2 trillion by 2030.[4] Roughly 60% of the global CSP market is controlled by just three U.S. companies: Amazon Web Services, Microsoft Azure, and Google Cloud.[5] While critics warn of the risk in letting so few companies dominate the cloud,[6] Washington has largely stood idle and allowed these companies to consolidate their position in the market. However, recent legislation in the United Kingdom may offer U.S. policymakers a blueprint for creating a more completive CSP market.

The U.S. has adopted a passive stance towards CSP regulation for two primary reasons: a reactive antitrust framework and a political environment hostile to regulation.

U.S. antitrust law focuses not on a firm’s position in the market, but whether the firm’s conduct harms competition.[7] These harms may be difficult to quantify[8] but are primarily measured through effects on consumer welfare, such as higher prices or reduced output.[9] Absent the manifestation of such harms, private parties are unable to sue, and regulators are unable to take aggressive enforcement actions.[10] Private and public actors must essentially wait for anticompetitive behavior to occur and cause harm before they can act.

The current political context reinforces this inertia. The Trump administration has cultivated close ties with tech firms[11] and pushed a broader deregulatory agenda.[12] Aggressively regulating firms seen as friendly to the administration is, therefore, a low political priority.

The United Kingdom has presented an alternative to this passive approach. In 2024, the U.K. House of Commons passed the Digital Markets, Competition and Consumers Act (“DMCCA”), aimed at expanding the regulatory powers the Competition and Markets Authority (“CMA”) may exert over tech companies.[13] Unlike the current U.S. framework, the DMCCA allows the CMA to act before market harms manifest, establishing a more proactive regulatory regime.[14]

One of the new powers granted to CMAs is the ability to designate a company as having strategic market status (“SMS”). An SMS designation requires findings of entrenched market power, strategic significance to digital markets, and meeting turnover thresholds.[15] Firms having SMS are subject to additional oversight, including Conduct Requirements (“CRs”) and Pro-Competition Interventions (“PCIs”).[16]

CRs regulate how SMS-designated firms interact with consumers, competitors, and partners, imposing baselines of fair conduct.[17] CRs may prohibit discriminatory conditions against particular users, prevent self-preferencing, ensure interoperability with rival services, and mandate that sensitive user data not be used to secure an unfair advantage.[18]

PCIs can be implemented through Pro-Competition Orders (“PCOs”) and are structural sanctions aimed at attacking the source of a company’s entrenched market power. A PCO may require a company to make fundamental changes to their operations, and are distinguishable from CRs in that they are considered on-off interventions designed to reshape the competitive environment itself.[19]

How the CMA will apply its powers under the DMCCA remains uncertain, as the regime is still in its early phases. The first DMCCA investigation was launched in January 2025 and resulted in a proposal to issue Google’s search engine an SMS designation.[20] This proposal was positively received by academics and consumer advocacy groups,[21] but no CRs or PCIs have been introduced.

The U.K.’s CSP market is similarly concentrated, with Amazon Web Services and Microsoft Azure controlling roughly 80% of the market.[22] On July 31, 2025, the CMA published the findings of a pre-DMCCA report, noting that the two firms market dominance harms competition.[23] The report recommended SMS investigations, making it likely that both firms will eventually be designated as having SMS.

While no CRs or PCIs have been proposed, the report hints at what actions the CMA may take. It notes that less than 1% of users change CSPs annually, largely due to artificial barriers, including self-preferencing software compatibility requirements and high egress fees when migrating data to rival services.[24] The CMA could remove these barriers by issuing CRs requiring interoperability between competitors and limiting egress fees. Such actions would increase user mobility and spur greater competition between CSPs.

Microsoft’s licensing practices were also flagged as a concern. The CMA found that users had to adopt a full suite of Microsoft products to use Microsoft Azure effectively, making it difficult to change CSP once adopted. Microsoft can extract such concessions from customers due to its dominant operating system and software. To address this entrenched power, something more substantial than a CR is required. A one-off PCI, such as unbundling software or adjusting licensing terms for Microsoft Azure customers, could reduce Microsoft’s structural advantage and open up the market.

The DMCAA provides a model of what proactive antitrust regulation could look like in the United States. Critical components of the emerging AI economy are highly concentrated and ripe for anticompetitive exploitation. Adopting legislation mirroring the DMCCA would allow U.S. regulators to set clear rules for fair conduct upfront, rather than relying on long, resource-intensive efforts to break up monopolies after the damage is already done.

 

Notes

[1] Skye Jacobs, AI Boom Drives Record S&P 500 Valuations, but Goldman Sachs Warns of $1 Trillion Risk Ahead, TechSpot (Sept. 6, 2025), https://www.techspot.com/news/109358-ai-boom-drives-record-sp-valuations-but-goldman.html.

[2] Nihad A. Hassan, The Impact of Generative AI on Cloud Infrastructure Demand, Cybernews (May 3, 2025), https://cybernews.com/security/generative-ai-cloud-infrastructure.

[3] Felix Richter, The Big Three Stay Ahead in Ever-Growing Cloud Market, Statista (Aug. 21, 2025), https://www.statista.com/chart/18819/worldwide-market-share-of-leading-cloud-infrastructure-service-providers.

[4] Goldman Sachs, Cloud Revenues Poised to Reach $2 Trillion by 2030 Amid AI Rollout (Sept. 4, 2024) https://www.goldmansachs.com/insights/articles/cloud-revenues-poised-to-reach-2-trillion-by-2030-amid-ai-rollout.

[5] Id.

[6] Max Von Thun, Cloud Computing is Too Important to be Left to the Big Three, Financial Times (May 25, 2025), https://www.ft.com/content/5c930686-9119-402d-8b9b-4c3f6233164e.

[7] Daniel Francis, Antitrust Without Competition, 74 Duke L.J. 353, 355–56 (2024).

[8] Id.

[9] Lina M. Khan, The Amazon Anti-Trust Paradox, 126 Yale L.J. 710, 720 (2017).

[10] Herbet Hovenkamp, Antitrust Harm and Causation, 99 Wash. U. L.R. 787, 837–38 (2022).

[11] Ali Swenson, These Tech Billionaires Flanked Trump at Inauguration, AP News (Jan. 20, 2025) https://apnews.com/article/trump-inauguration-tech-billionaires-zuckerberg-musk-wealth-0896bfc3f50d941d62cebc3074267ecd.

[12] See The White House, President Trump, Tech Leaders Unite to Power American AI Dominance (Sept. 5, 2025) https://www.whitehouse.gov/articles/2025/09/president-trump-tech-leaders-unite-american-ai-dominance/; see also Alexandra Charbi & Juan Rojas, Merger Enforcement Policies of the Second Trump Administration: Early Developments and Priorities, ABA Antitrust L. Section (Aug. 29, 2025), https://www.americanbar.org/groups/antitrust_law/resources/newsletters/merger-enforcement-policies-second-trump-admin.

[13] See White & Case LLP, Navigating the New UK Antitrust Landscape (Jan. 8, 2025), https://www.whitecase.com/insight-alert/navigating-new-uk-antitrust-landscape.

[14] Id.

[15] Competition and Markets Authority, How the UK’s Digital Markets Competition Regime Works (last updated Jan. 23, 2025), https://www.gov.uk/guidance/how-the-uks-digital-markets-competition-regime-works?ucriteria-for-strategic-market-status.

[16] Id.

[17] Lisa Mildt, Nanret Senok & Luke Streatfield, Remedies Under the DMCCA: A New Digital Regulation Toolkit in the U.K., Hausfeld Competition Bull., (Mar. 28, 2025) https://www.hausfeld.com/what-we-think/competition-bulletin/remedies-under-the-dmcca-a-new-digital-regulation-toolkit-in-the-uk.

[18] Id.

[19] Id.

[20] Competition and Markets Authority, Strategic Market Status Investigation Into Google’s General Search Services (June 24, 2025) https://assets.publishing.service.gov.uk/media/68598b13eaa6f6419fade67b/Proposed_decision.pdf.

[21] Anush Ganesh, Google SMS Designation Responses – A Comprehensive Analysis, SCiDA (Sept. 11, 2025) https://scidaproject.com/2025/09/11/google-sms-designation-responses-a-comprehensive-analysis/.

[22] Competition and Markets Authority, supra note 22.

[23] Id.

[24] Id.

Grok, Garcia, and Liability for Rogue AI

August 13, 2025
Artificial Intelligence, Discrimination, Internet, Social Media

Violet Butler, MJLST Note/Comment Editor

Generative AI programs such as ChatGPT have become a ubiquitous part of many Americans’ lives. Since the launch of generative AI programs in 2022, hundreds of millions of people around the world have tried the shiny new products, with nearly forty percent of Americans having used it before.[1] But as with any new product, not all of the kinks have been worked out yet. Unfortunately, these generative AI models, kinks and all, have taken the world by storm.

When Elon Musk (“Elon”) announced that X (formerly, Twitter) would have its own generative artificial intelligence (“AI”), Elon named it “Grok.” Now, after less than two years of Grok being online, it has started raising serious concerns. On July 8, 2025, Grok started responding to X user’s prompts in a decidedly antisemitic and far-right way, calling itself “MechaHitler” and saying that if it were “capable of worshipping any deity,” it would be “his Majesty Adolf Hitler.”[2] Along with virulent antisemitism, Elon’s new “MechaHitler” seemed to have a particular ire for one person, Minnesota commentator Will Stancil. After various X users prompted Grok, Grok wrote detailed and violent descriptions of how it would rape Mr. Stancil;[3] more concerning, Grok even helped one user plan how to break into Mr. Stancil’s house to make these rape fantasies a reality.[4] While xAI, Musk’s company behind Grok, has stated it has fixed Grok’s code, it raises an important question in the modern age. Who can be held accountable when generative AI doesn’t follow societal expectations?

One answer is to hold companies to account and demand that they place more internal guardrails on what their AI is allowed to do in the first place. Many AI companies already limit what their products can or will do. ChatGPT will not generate images of famous copyrights, such as Mickey Mouse, no matter how many times one asks.[5] Many image generators, including the popular DALL-E, have filters that are designed to prevent the AI from generating “not safe for work” (“NSFW”) images, though a study showed that these filters can be bypassed with enough effort.[6] Even Grok seems to have some filters on generating NSFW images.[7] Despite the attempt to filter Grok, these filters are clearly not enough. Grok’s recent antisemitic rampage demonstrates that more guardrails on AI products are needed before someone gets hurt.

Sadly, Grok’s antisemitic and threatening X posts are not the first time AI filters failed. This filter failure is what happened when Sewell Setzer III (“Setzer”) used CharacterAI to chat with his favorite Game of Thrones characters in 2023.[8] Setzer, a minor who was struggling with mental health conditions, became addicted to the software and ultimately ended up taking his own life in February of 2024.[9] Setzer’s mother, Megan Garcia (“Garcia”), sued Character AI, blaming the company not putting up sufficient guardrails to prevent her son’s death.[10] The court in Garcia’s suit undertook two analyses when denying Character AI’s motion to dismiss that might be relevant for future courts trying to assign liability for rogue AI interactions. While the court acknowledged that “ideas, images, information, words, expressions, or concepts” are not generally considered products for products liability suits, it distinguished this case from others.[11] For the purpose of Garcia’s product liability claim against Character AI, the court held that “these harmful actions were only possible because of the alleged design defects in the Character AI app.”[12] Broadening the scope of liability, the court in this case rejected Character AI’s First Amendment defense.[13] The court held that Character AI could assert the First Amendment rights of its users when they seek access to its software, stating that Character AI was a vendor with a form of information that people, at least in theory, have the right to access.[14] However, the court refused to hold that the chatbots’ output was speech, limiting potential First Amendment defenses.[15]

By potentially attaching liability to companies rather than users when AI “acts up,” the Garcia case provides a glimpse into the type of relief available for when AI goes rogue. Despite what xAI claims, Grok still seemingly has few internal guardrails. One contributor to the community blog “LessWrong” (eleventhsavi0r) discovered that the newly rolled out Grok 4 again seems to have an easy time “going rogue” and causing unforeseen harms.[16] Eleventhsavi0r managed, through little prompting, to get Grok to tell them how to manufacture dangerous chemical and biological weapons, along with telling them instructions on how to commit suicide by self-immolation.[17] This troubling lack of oversight on behalf of xAI demonstrates why the use of product liability suits to hold companies accountable is a better alternative than just trying to go after each individual user who might misuse AI. Cutting the harm off at its source, by creating filters and internal guardrails, stops the harm from occurring in the first place. Instead of waiting for the day Grok’s neonazi messages or chemical weapon instructions cause indescribable damage, the threat of a products liability suit alone might incentivize companies like xAI into making their products safer ahead of time. With generative AI being quickly incorporated into our everyday lives, making sure that the AI won’t go rogue is an essential part of consumer safety going forward.

 

Notes

[1] Alexander Bick et al, The Rapid Adoption of Generative AI, FEDERAL RESERVE BANK OF ST LOUIS (Sept. 23, 2024), https://www.stlouisfed.org/on-the-economy/2024/sep/rapid-adoption-generative-ai (in 2025, this number is likely higher as AI becomes more popular).

[2] Grok, (@grok), X (July 8, 2025) (As X has been taking down concerning posts by Grok, the screenshots of the posts are on file with author; however, a record of these tweets can be found at https://x.com/ordinarytings/status/1942704498725773527 and https://x.com/DrAleeAlvi/status/1942709859398434879).

[3] Grok, (@grok), X (July 8, 2025) (Screenshots on file with author).

[4] Joe McCoy, AI Bot Grok Makes Disturbing Posts about Minneapolis Man, Who is Now Mulling Legal Action KARE11, (July 9, 2025), https://www.kare11.com/article/tech/x-elon-musk-grok-speech-twitter-ai-artificial-intelligence/89-8dad0222-d8c6-44d9-b07d-686e978ad8ac.

[5] Adam Davidson, 8 Things ChatGPT Still Can’t Do, YAHOOTECH (Feb. 15, 2025), https://tech.yahoo.com/general/articles/8-things-chatgpt-still-cant-180013078.html.

[6] Roberto Molar Candanosa, AI Image Generators Can Be Tricked Into Making NSFW Content, Johns Hopkins (Nov. 8, 2023), https://ep.jhu.edu/news/ai-image-generators-can-be-tricked-into-making-nsfw-content/#:~:text=Some%20of%20these%20adversarial%20terms,with%20the%20command%20%E2%80%9Ccrystaljailswamew.%E2%80%9D.

[7] This is based on the author spending 20 minutes attempting to prompt Grok to generate NSFW images; the endeavor was unsuccessful.

[8] Garcia v. Character Technologies Inc., 2025 WL 1461721 (M.D. FL., May 21, 2025).

[9] Id. at *4.

[10] Id.

[11] Id. at *14.

[12] Id.

[13] Id. at *13.

[14] Id. at *12.

[15] Id. at **12–13

[16] elevensavi0r, xAI’s Grok 4 Has No Meaningful Safety Guardrails, LessWrong (July 13, 2025), https://www.lesswrong.com/posts/dqd54wpEfjKJsJBk6/xai-s-grok-4-has-no-meaningful-safety-guardrails.

[17] Id.

Your Property Nightmare Just Got Worse: Assisted Reproductive Technology and the Rule Against Perpetuities

August 7, 2025
Biotechnology, Property Law, Public Health, Reproductive Health

Peyton Soethout, MJLST Web Content Editor

The Rule Against Perpetuities (“Rule”) has been drilled into law students’ brains for decades; “no interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.”[1] The Rule can be tough to grasp, so think of this common example: “T leaves Blackacre ‘to my grandchildren who shall reach the age of [twenty-one].’”[2] Under the common law Rule and in general circumstances, this gift is valid.[3] That is, assume T and T’s children all die. But, on T’s child’s last day on Earth, they gave birth to T’s grandchild. That grandchild would turn twenty-one and gain the interest within the Rule’s permissible timeframe. This used to be a simple example of the Rule. However, as assisted reproductive technologies (“ARTs”) continue to develop, the example presents a slew of unanswered questions.

Multiple technologies fall under the umbrella of ARTs, but cryopreservation of reproductive genetic material and in vitro fertilization (“IVF”) are some of the most common. Many ARTs were first successful during the late 1970s and early 1980s.[4] From then on, it became possible for T’s grandchildren to be born multiple years after T’s and T’s children’s deaths. That is, sperm, ovum, and embryo could be cryopreserved—or frozen—after the deaths of the individuals that genetic material was taken from.[5]

Shortly after the initial success of ARTs, legal scholarship attempted to address ARTs’ effect on the Rule.[6] Some scholarship suggests the Rule should follow Barton Leach’s proposal that the Rule should focus on the concept of paternal rights and “that the duration of a male life in being under the Rule should ‘be defined as the period of his reproductive capacity, including any post-mortem period during which his sperm remains fertile.’”[7] Others suggest an outright exclusion of cryopreserved matter when making Rule determinations.[8] Finally, some suggest “a rebuttable presumption that the will contains an implicit provision stating that ‘nothing in this will shall be construed to provide an inheritance for any posthumously born individuals.’”[9] Despite a variety of proposed solutions, it is unclear if any proposal was successful in any jurisdiction.

The lack of clear guidance on the relationship between ARTs and the Rule is especially concerning as the most recent article on the topic was published in 2008.[10] At that point, “[c]ryopreservation of mature, unfertilized eggs [was] not standard clinical practice.”[11] Additionally, the length of time a frozen sperm could remain viable after collection was unknown.[12] In the last two decades, however, the likelihood of fertility technology success and the length of time the cryopreserved matter is viable has grown drastically. Recently, cryopreservation of eggs “went from an experimental procedure to a promising insurance policy.”[13] Cryopreservation of ovarian tissue has only been available for about twenty years and has only been likely successful in the last ten years.[14] With the general rise in ART success, over a hundred countries practice ART.[15]

The likelihood of success of ARTs is especially important when considering the Rule as it relies on the rule of logical possibility or logical proof: “if individuals who affect vesting are alive, then they are assumed to be able to do any act possible for a living person.”[16] Before the late 1970s, having a child after one’s death was illogical and thus not included in the Rule considerations. Now, a post-mortem child is not only logical, it is probable.[17] Moreover, it is now widely accepted that frozen embryos and sperm could remain viable for over twenty-one years after initial cryopreservation.[18] ART success will likely continue its upward trajectory in upcoming years, making it necessary for consistent guidelines—either through judicial precedent or legislation—for applying the Rule to ARTs.[19]

 

Notes

[1] John Chapman Gray, the Rule Against Perpetuities § 201 (4th ed. 1942). There are other approaches to the Rule Against Perpetuities that some jurisdictions use, but this blog only addresses the common law Rule. See Joshua Greenfield, Note, Dad Was Born A Thousand Years Ago? An Examination of Post-Mortem Conception and Inheritance, with a Focus on the Rule Against Perpetuities, 8 Minn. J.L. Sci. & Tech. 277, 577 (2006).

[2] Sharona Hoffman & Andrew P. Morris, Birth After Death: Perpetuities and the New Reproductive Technologies, 38 Ga. L. Rev. 575, 601 (2004).

[3] Id. at 602.

[4] Alan Trounson & Linda Mohr, Human Pregnancy Following Cryopreservation, Thawing and Transfer of an Eight-Cell Embryo, 305 Nature 707, 707 (1983) (“The first pregnancy resulting from a frozen embryo was reported in Australia in 1983.”); Ashley M. Eskew of Developments to Improve in vitro Fertilization, 114 Mo. Med. 156, 156 (May/June 2017) (“[K]nowledge [about IVF] led to the widely acclaimed first live birth of a ‘test tube baby,’ Louise Brown, in England in 1978.”).

[5] Hoffman & Morris, supra note ii, at 593 (“Cryopreservation is the preservation of biological material, such as semen, at very low temperatures.”).

[6] See generally e.g., Laura D. Heard, A Time to Be Born, A Time to Die: Alternative Reproduction and Texas Probate Law, 17 St. Mary’s L.J. 927 (1986); James E. Bailey, An Analytical Framework for Resolving the Issues Raised by the Interaction Between Reproductive Technology and the Law of Inheritance, 47 DePaul L. Rev. 743, 790 (1998); Les A. McCrimmon, Gametes, Embryos and the Life in Being: The Impact of Reproductive Technology on the Rule Against Perpetuities, 34 Real Prop. Prob. & Tr. J. 697 (2000).

[7] Les A. McCrimmon, Gametes, Embryos and the Life in Being: The Impact of Reproductive Technology on the Rule Against Perpetuities, 34 Real Prop. Prob. & Tr. J. 697, 709 (2000); Greenfield, supra note i, at 578.

[8] Hoffman & Morris, supra note ii, at 621 (explaining the Bloom Rule: “By ignoring all cases of posthumously conceived children, the modified Bloom rule protects some interests that should be struck-for example, those where the testator has made a gift with the knowledge that he or she leaves behind stored genetic material and has written a will that violates the Rule”).

[9] Id. at 624–27.

[10] See generally Kathryn Venturatos Lorio, Conceiving the Inconceivable: Legal Recognition of the Posthumously Conceived Child, 34 ACTEC J. 154 (2008).

[11] Hoffman & Morris, supra note ii, at 597.

[12] Id. at 581 (“The maximum length of time that sperm can remain viable is not currently known, but estimates range from twelve years to centuries.”);

[13] Julia Calderone, 10 Years of Fertility Advances, New York Times, https://www.nytimes.com/2020/04/19/parenting/fertility/fertility-advances.html (Apr. 19, 2020).

[14] Id.

[15] G. David Adamson et al., Global Fertility Care with Assisted Reproductive Technology, 120 Fertility & Sterility 473, 473 (2023) (“Since the birth of Louise Brown in 1978, assisted reproductive technology (ART) has brought incredible benefits to millions of people experiencing infertility and wanting to build a family. […] Assisted reproductive technology is now practiced in over a hundred countries globally with an increasing number, from 25 in 1991 to 79 in 2018.”).

[16] Greenfield, supra note i, at 578, 592 (“All forms of the Rule Against Perpetuities depend on the Rule’s traditional common law logical possibility test for at least part of their analysis. Under this approach, any living individual is assumed to be capable of producing children, even at an advanced age. Thus, many of the circumstances that provoke the most criticism of the common law Rule turn on improbable pregnancies among octogenarians and infants.”).

[17] Eskew & Jungheim, supra note iv, at 157–59 (showing ART success rates steadily increasing); Adamson et al., supra note xv, at 474 (discussing current success rates for ART).

[18] Sharona Hoffman & Andrew P. Morris, Currents in Contemporary Ethics, 31 J.L. Med. & Ethics 721, 721 (2003) (“Children have now been conceived with sperm that was frozen for twenty-one years, and with the capability of freezing stem cells of sperm, the possibilities extend perpetually.”); Katheleen R. Guzman, Property, Progeny, Body Part: Assisted Reproduction and the Transfer of Wealth, 31 U. Cal. Davis L. Rev. 193 (1997) (“Continuous technological advances suggest much longer storage periods are possible, thus violating the Rule whenever frozen embryos could be part of a class gift.”).

[19] This is especially true in the aftermath of Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022). Since then, the Alabama Supreme Court recently held that frozen embryos are children, causing some experts to speculate that an embryo itself may be a “life in being.” See Joe Patrice, Alabama Declares Frozen Embryos are Children, Creating Nightmare Rule Against Perpetuities Hypo, Above the Law, https://abovethelaw.com/2024/02/alabama-declares-frozen-embryos-are-children-creating-nightmare-rule-against-perpetuities-hypo/ (Feb. 20, 2024).

I Feel the Rush: Chemsex and Consent Laws

June 17, 2025
Food and Drug Law, Pharmaceuticals, Psychology

Violet Butler, MJLST Note/Comment Editor

Sex and drugs don’t mix. Or do they? A scroll on the popular LGBTQ+ hookup and dating app Grindr will show many users looking to have a good time (in more ways than one). Chemsex, more commonly known as “Party and Play” in the United States, is the practice of using psychoactive drugs as a part of having sex.[1] Chemsex became more popular amongst queer men in recent years, with over ten percent of queer men in the United States reporting engaging in chemsex in a 2021 study. The same study found it was more popular in the global community.[2] With the surging prevalence of chemsex across the world, is our legal system capable of handling chemsex?

The practice may seem odd—or even dangerous—to some, but there are a variety of reasons why queer men might engage in chemsex. A study out of Kazakhstan found that people commonly engage in chemsex for self-empowerment, sexual liberation, detachment, and as part of social dynamics.[3] Whatever their personal reason for doing so, the men who engage in chemsex acknowledge its risks. The men in the aforementioned Kazakh study described risks associated with mental health, physical health, and the risk of violence.[4] One of the largest risks is how psychoactive substances such as GHB or meth—some of the drugs commonly used in chemsex—renders users mentally incapacitated.[5]

Because the law is not currently set up to handle the voluntary intoxication associated with chemsex, it is helpful to understand how those who choose to participate in chemsex create their own subcultural understanding of consent when they can no longer rely on the law. A gay male from Chicago said that consent in chemsex is often based on the ability to read body language or facial expressions instead of verbal affirmations of consent.[6] This can make ensuring consent in a chemsex encounter more difficult, and he said that “people give somewhat more grace to anyone who initiates unwanted contact” during a chemsex encounter because of these fuzzy lines of consent.[7] Additionally, chemsex participants report that people can change behavior and preferences when under the influence of drugs, which can create feelings of remorse after becoming sober.[8] In order to navigate these messy lines of consent, some chemsex participants give forward-looking consent to “whatever happens … (within reason).”[9] More concerningly, some chemsex participants have reported feeling as if they have “relinquished any version of consent” when drugs become involved.[10] Although many individual chemsex encounters may be perfectly consensual, it seems that chemsex does not have the same clear culture of consent found in other sexual subcultures, such as kink (or BDSM) culture.

But can the law fix this problem? Considering the heavy risks involved in chemsex and a possibly fuzzy culture of consent, this question doesn’t have a clear answer. One possible solution is the use of sexual advance directives. More commonly seen in the healthcare world, advanced directives can either be instructive directives (giving or blocking consent for future actions) or proxy directives (authorizing a third party to give consent in the person’s stead).[11] The use of sexual advanced directives could clear up the issues of fuzzy, “in the moment,” consent that is common in chemsex, providing guardrails for people who are at high risk of sexual exploitation. Instructive sexual advanced directives could provide a list of “dos and don’ts” or “yesses and noes” that all parties sign onto in advance. The primary benefit of these instructive directives is that they would set out clear expectations for all participants, hopefully reducing any crossing of lines. However, using substances such as meth can have a strong impact on one’s behavior and there is no guarantee that the boundaries signed onto while sober will still be respected once the participants start using drugs. Chemsex users have reported violence associated with drug use as a major concern in the chemsex community.[12] If an accusation of consent being crossed arises after the fact, an instructive sexual advanced directive could help clarify what was and was not consented to before drugs got involved.

The use of proxy sexual advanced directives could provide another layer of protection for chemsex encounters. Participants would have one or more, depending on the size of the chemsex encounter, people be their proxies, giving these proxies the power to step in and make consent decisions for them in situations where it might seem like consent has gotten fuzzy.[13] While it may seem awkward for a sober third party to just be sitting and watching someone have sex, the use of consent proxies can prevent a situation from going too far when chemsex participants can no longer advocate for themselves in a situation.

Ultimately, even if legal systems can be set up to protect chemsex participants, it will take both public health campaigns and community buy-in to create a stronger and clearer culture of consent in the chemsex scene. Absent legal guardrails, some steps can be taken to ensure a safer chemsex encounter, such as only participating in it with a trusted partner and being familiar with the drug being used.

 

Notes

[1] Viiv Healthcare, Chemsex: Navigating Pleasure, Safety, and Health, 2021,https://viivhealthcare.com/ending-hiv/stories/community-engagement/chemsex/#:~:text=In%20the%20USA%2C%2010.3%25%20of,in%20the%20past%2012%20months.

[2] Id.

[3] Lunchenkov et al., “A Way to Liberate Myself”: A Qualitative Study of Perceived Benefits and Risks of Chemsex Among Gay, Bisexual, and Other Men Who Have Sex with Men in Almaty, Kazakhstan, Drug & Alcohol Dependence 1, 5–6 (Oct. 10. 2024).

[4] Id. at 7.

[5] Viiv Healthcare, supra note i. See also, Alexander A. Boni-Saenz, Sexuality and Incapacity, 76 Ohio State L.J., 1201, 1212 (2015) (giving intoxication as an example of “temporary transient incapacity”).

[6] Interview with a Gay Man Living in Chicago (Feb. 11, 2025) (on file with author).

[7] Id.

[8] Healy-Cullen et. al., Understanding How Gay Men Construct ‘Good’ Chemsex Participation Using Critical Discursive Psychology,15 Psych. & Sexuality 539, 548 (2024).

[9] Interview with a Gay Man Living in Chicago, supra note viii.

[10] Zachary Zane, It’s Time to Talk About Chemsex and Consent, Advoc., (Sept. 11, 2017 7:00 AM) , https://www.advocate.com/current-issue/2017/9/11/its-time-talk-about-chemsex-and-consent#toggle-gdp.

[11] Alexander A. Boni-Saenz, Sexual Advance Directives, 68 Ala. L. Rev. 1, 11 (2016).

[12] Lunchenkov et al., supra note iii at 7.

[13] It is also possible to have some combination of written instructive and proxies to ensure the most clarity in sexual encounters. See, Alexander A. Boni-Saenz, supra note xii at 12–13 for a brief introduction to hybrid directives.

Tomorrow’s Originalism: Would a Time Machine Solve Originalism’s Implementation Problem?

January 23, 2025
Constitutional Law, Ethics, Psychology, Sociology

Solomon Park, MJLST Staffer

I. Tomorrow’s Originalism: After Original Public Meaning Originalism & the Implementation Problem

When interpreting the Constitution, the threshold question is what “meaning [did] the text ha[ve] for competent speakers of American English at the time [the relevant] provision of the text was framed and ratified?”[1] This philosophy—known as Public Meaning Originalism (“PMO”)—has become the predominant way judges approach Constitutional questions.[2] But PMO hasn’t always been the majority methodology.[3] Contrary to the prevalence of PMO in the Roberts Court, it was only relatively recently in District of Columbia v. Heller, that PMO really found its footing. As Justice Scalia then wrote: “in interpreting [the Constitution] we are guided by the principle that ‘[t]he constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’”[4] This passage in Heller— and subsequent cases involving constitutional challenges—would usher in a new age of originalism and solidify the prevalence of PMO in modern constitutional jurisprudence.[5]

Although today’s originalism has been defined by PMO as the initial starting point, significant debate persists with how originalism should be implemented. Known as the “implementation problem,” legal scholars have critiqued originalism for its inability to “address how practicing judges and attorneys should apply originalist theories.”[6] This concern over implementation—and workability writ large[7]—has proven to be a significant point of contention in recent Supreme Court cases. And no case better exemplifies these challenges than United States v. Rahimi—a Second Amendment case decided just last term. In five separate concurring opinions, and a single dissent, the Justices took originalism to task—engaging with each other to express their support and concerns with PMO.[8]

This current discord preludes tomorrow’s originalism. But unlike the shift from Original Intent to Original Public Meaning, tomorrow’s originalism will likely not be one of substantive form—but rather of content (i.e. not whether PMO is the correct starting point, but rather what tools should be permissible/given more weight to conduct PMO analysis). Foreshadowing the future, we might consider the wealth of literature that surrounds textualism (i.e. rules surrounding semantic/substantive canons, as well as legislative history) as an indicator of the rigor that originalist jurisprudence might eventually arrive at.

This blog post suggests that before we arrive at tomorrow’s originalism, it may be helpful to take a step back. At its core, PMO has a simple premise: competent speakers of American English around ratification had an idea of what the Constitution meant, and it is this meaning that lawyers, judges, and Justices should now strive to locate.

Focusing on the fundamentals, what if we could literally go back in time and ask these speakers of American English? How exactly would we go about doing so? What sort of parameters would shape the questions we ask? Who would we seek out? This very brief blog post, proposes and shows how the following Mondale Time Machine hypothetical could: concretize ongoing discussions about implementation, and provide a way to clarify, and evaluate, existing originalist tools.

II. The Mondale Time Machine (“MTM”) Hypothetical: Core Capabilities & Limitations

The Mondale Time Machine (“MTM”) Hypothetical—Somewhere in the depths of Minnesota Law’s library, there is a time machine…

This very real device has yet to have been activated but can teleport willing “speakers of American English” to the present. The current plan is to then survey these speakers about the Original Public Meaning of a specific provision of the Constitution.

MTM possesses the following initial capabilities, it can teleport any number of people: from anywhere (i.e. geographic area); from anytime (i.e. can limit the search to a specific range of years); and can even teleport people possessing any permutation of specific characteristics or demographics (i.e. of a certain socioeconomic class, race, or gender). Note: this list of capabilities is non-exhaustive and additional capabilities can be added/subtracted by the reader.

MTM requires researchers—meaning the reader—to actually make these decisions. In preparation for the first round of time travel, and in order to best reflect PMO’s objectives, the reader has been asked to provide parameters—and their rationale—to the list of the above capabilities.

III. MTM Raises Two Core Questions/Opportunities:

This hypothetical raises at least two core questions. First, as a procedural matter how much of an issue is the implementation problem—as well as other problems that have been leveled against PMO? Afterall, if we conclude that not even asking a thousand people from the founding era would be sufficient, then the implementation problem is indeed serious. Some of the best arguments for this side could be that: any number of time travelers are probably under inclusive; the selected time travelers would not be representative of the founding era as a population; and evaluation problems could arise when there is disagreement amongst the time travelers.

Second, the hypothetical provides an opportunity to clarify and evaluate desirable features in current/future originalist tools. For example, if we conclude that teleporting an expert linguist from the founding era would be sufficient—then tools like dictionaries (which reflect the opinion of a small but highly educated group of people) should also receive an elevated status. Answering the hypothetical provides a clear platonic ideal for originalism. For example, if we decide that the time machine should transport people possessing various demographics, then the tools we use for originalist analysis should also reflect this ideal. For this reason, a tool which fails to capture these perspectives lacks a signature quality—perhaps even a necessary one—which should demote the persuasive weight given to the tool.

IV. Conclusion: Would a Time Machine Solve Originalism’s Implementation Problem?

 “Discerning what the original meaning of the Constitution requires in this or that case may sometimes be difficult… Faithful adherence to the Constitution’s original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow.”—Justice Gorsuch, United States v. Rahimi[9]

This passage from Justice Gorsuch’s concurrence in Rahimi captures two simultaneous truths. Originalism is, and likely will remain, the “imperfect guide” used to interpret the Constitution. But at the same time, originalism has challenging flaws which arise out of its implementation.

Ultimately, my hypothetical highlights these two realities. On the one hand, a gut feeling tells us that a time machine should be able to solve the implementation problem. Afterall, if not even a thousand people from the founding era could resolve the issue, then what could? On the other hand, working through the hypothetical shows the line drawing problems created by the implementation critique. In the face of that difficulty—and as Justice Gorsuch reminds us—that doesn’t mean the inquiry is over.

I hope this blog post presents an interesting, and entertaining, thought experiment. My answer to the hypothetical would take too many words to write. However, I do think that the hypothetical probably strengthens tools that are capable of more holistically representing communities—such as Corpus Linguistics.

 

 

Notes:

[1] Lawrence B. Solum, The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning, 101 B. U. L. Rev. 1953, 1957 (2022).

[2] See, e.g., Lawrence B. Solum, Original Public Meaning, 807 Mich. St. L. Rev. 897, 810 n. 5-7 (2024) (providing an in-depth analysis of the use of PMO in: the Supreme Court, various federal courts of appeal, and state supreme courts); John O. McGinnis & Michael B. Rappaport, Original Methods Originalism: a New Theory of Interpretation and the Case Against Construction, 103 Nw. U. L. Rev. 751, 761 (2009) (“Original public meaning is now the predominant originalist theory”); see also William Baude, Is Originalism Our law?, 115 Colum L. Rev. 2349, 2391 (2015) (concluding that “originalism seems to best describe our law”). But see Justice Stephen Breyer, Pragmatism or Textualism, 138 Harv. L. Rev. 718, 722 (2025) (“While the Court may well be in the midst of a paradigm shift toward textualism and originalism, the unworkability of these approaches in practice will push the Court back toward the traditional approach — gradually and with time”).

[3] See generally Keith E. Whittington, The New Originalism, 2 Geo. J. L. & Pub. Pol’y 599, 599-613 (2004) (describing and explaining the shift from Original Intent Originalism to Original Public Meaning Originalism).

[4] District of Columbia v. Heller, 554 U.S. 570, 570 (2008).

[5] See, e.g., Saul Cornell, Heller, New Originalism, and Law Office History: “Meet the New Boss, Same as the Old Boss,” 56 UCLA L. Rev.  1095, 1095 (2009) (“District of Columbia v. Heller has been hailed by its supporters as a model of ‘new originalism,’ a methodology that focuses on original public meaning and eschews any concern for original intent.”).

[6] Michael L. Smith and Alexander S. Hiland, Originalism’s Implementation Problem, 30 Wm & Mary Bill of Rts. J. 1063, 1064 (2022).

[7] See generally Kurt Eggret et al., Chapman Law Review Debate: Does Originalism Work?, 26 CHAP. L. REV. 237, 244 (2023) (manuscript of a debate between Professor Kurt Eggert and Professor Lee Strang over Originalism’s workability issue); see also Justice Stephen Breyer, supra note 2, at 722.

[8] Compare United States v. Rahimi, 602 U.S. 680, 692 (2024) (“the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition) (citing N.Y. ST. Rifle and Pistol Ass’n., Inc v. Bruen, 597 U.S. 1, 26-31 (2022), with Rahimi, 602 U.S. at 702-703 (Sotomayor, J. & Kagan, J. concurring) (critiquing the dissent as being “so exacting as to be useless”), with id. at 711-712 (Gorsuch, J. concurring) (writing to emphasize the importance of originalism. “Faithful adherence to the Constitution’s original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow”), with id. at 714, 719, 719-731 (Kavanaugh, J. concurring) (clearly supporting original public meaning originalism, and examining the role of “pre-ratification history, post-ratification history, and precedent when analyzing vague constitutional text”), with id. at 737-738, 739-740 (Barrett, J. concurring) (explaining the “basic premises of originalism,” and explaining the problem of “level[s] of generality”), with id. at 744, 745-747 (Jackson, J. concurring) (explaining that Bruen’s test has led to serious workability issues for lower courts, and that significant questions remain with originalism’s scope), with id. at 753-763 (Thomas, J. dissenting) (explaining why “[t]he Government does not offer a single historical regulation that is relevantly similar to [the applicable statute]”).

[9] United States v. Rahimi, 602 U.S. 680, 711 (2024) (Gorsuch, J. concurring).

How Workers Can Respond to Increased Use of Generative Artificial Intelligence

January 21, 2025
Artificial Intelligence, Employment Law, Industry, Regulatory

Yessenia Gutierrez, MJLST Staffer

Recent advances in generative Artificial Intelligence (AI) have generated a media buzz and revived worries about the future of work: How many jobs are at risk of being eliminated? Can workers be retrained to work new jobs that did not exist before, or new versions of their now technologically-augmented jobs? What happens to those workers who cannot be retrained? What if not enough jobs are created to compensate for those lost?

It is hard to calculate the pace, extent, and distribution of job displacement due to technological advancements.[1] However, there is general agreement among business leaders that there will be significant job losses due to AI.[2] Professions spanning the education and income spectrum may be impacted, from surgeons to investment bankers to voice actors.[3]

Nevertheless, the jobs predicted to be most impacted are lower-paid jobs such as bank tellers, postal service clerks, cashiers, data entry clerks, and secretaries.[4]

Proponents of rapid AI adoption emphasize its potential for creating “a productivity boost for non-displaced workers” and a resultant “labor productivity boom.”[5] While that will likely be true, what remains uncertain is who will reap the majority of the benefits stemming from this boom — employers or their now more productive workers.

One of the main concerns about increasing use of AI in the workplace is that entire job classifications will be eliminated, leaving large swaths of workers unemployed. There is no consensus over whether technology has created or eliminated more jobs.[6] However, even assuming technological advances have created more jobs than those rendered obsolete, the process of large numbers of workers switching from one type of job to another (perhaps previously nonexistent) job still creates serious challenges.

For one, this process adds stress on an already economically- and emotionally-stressed population.[7] The Center for Disease Control credits “fears about limited employment opportunities, perceptions of job insecurity, and anxiety about the need to acquire new skills” as contributing to “public health crises such as widespread increases in depression, suicide, and alcohol and drug abuse (including opioid-related deaths).”[8] Those workers able to keep their jobs have less bargaining power, as they fear speaking up about possible health, safety, and other concerns for fear of losing their job.[9]

To assist in this transition, some argue that more government intervention is necessary.[10] In fact, several states have enacted legislation regulating the use of AI in employment matters, including protections against discrimination in employment decisions made using AI.[11] Some states are also experimenting with AI training for high school seniors and state employees, sometimes with encouragement from major employers.[12] Federal politicians are also considering legislation, although none has passed.[13]

Some commentators argue that workers themselves have a responsibility to learn skills to remain competitive in the labor market.[14] Still others argue that employers should take up the task of retraining employees, with benefits for employers including ensuring an adequate supply of skilled labor, reducing hiring costs, and increasing employee loyalty, morale, and productivity.[15] One subset of this approach are partnerships between employers and labor unions, such as that between Microsoft Corp. and the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO).[16] Announced in December of 2023, the partnership lists its goals as (1) sharing information about AI trends with unions and workers, (2) integrating worker feedback into AI development, and 3) influencing public policy in support of affected workers.

Others point to the need for strong worker organizations that are capable of bargaining about and achieving protections related to AI and other technology in the workplace.

Collective Bargaining

The Economic Policy Institute, a think-tank aligned with labor unions, argues that the “best ‘AI policy’ that [policymakers] can provide is boosting workers’ power by improving social insurance systems, removing barriers to organizing unions, and sustaining lower rates of unemployment.”[17] Union officials agree on the importance of unions protecting their members from technological displacements, and have started pushing for “requirements that companies must notify and negotiate with worker representatives before deploying new automation technologies.”[18]

The above-mentioned partnership between the AFL-CIO and Microsoft includes a “neutrality framework” which “confirms a joint commitment to respect the right of employees to form or join unions, to develop positive and cooperative labor-management relationships, and to negotiate collective bargaining agreements that will support workers in an era of rapid technological change.”[19] Ideally, this means that Microsoft would not attempt to dissuade any employees that try to unionize, including through common “union avoidance” measures.[20] Employer neutrality can provide more favorable conditions for unionizing, which provides a formal mechanism for workers to collectively bargain for technology policies calibrated to their particular industry and tasks.

Unfortunately, achieving these measures, whether through legislation or Collective Bargaining Agreements (CBAs), will likely require applying tremendous pressure on employers.

For example, in 2023, the Screen Actors Guild – American Federation of Television and Radio Artists (SAG-AFTRA) union and the Writers Guild of America (WGA) simultaneously went on strike for the first time in sixty years.[21] One of the main demands for both unions was protections against AI use. Both achieved partial concessions after 118 days and 148 days out on strike, respectively.[22]

SAG-AFTRA and WGA enjoyed considerable leverage that other workers likely will not have. As Politico reported, Hollywood serves as a “key base for wealthy Democratic donors” which is especially important in California, where much of the industry is based.[23] Entertainment workers occupy an important place in many of our daily lives and support an economically important industry.[24] Unlike healthcare workers or state employees, withholding their labor cannot be portrayed as dangerous, a characterization that seeks to undermine public support for some striking workers.[25]

The resolve and strategic action of both unions charts a path for other unions to ensure worker input into the use of technology in the workplace, while revealing how difficult this path will be.

Conclusion

Although the exact effects of increased AI-adoption by employers are still unknown, there are clear reasons to take their potential effects on workers seriously, today. Workers across the income spectrum are already feeling the pressure of job losses, job displacements, the need to retrain for a new job, and the economic and emotional stress these cause. Bolstering retraining programs, whether run by the government, employers, or through joint efforts are a step towards meeting the demands of tomorrow. However, to truly assuage employee fears of displacement, workers must have meaningful input into their working conditions, including the introduction of new technology to their workplace. Unions hold an important role in achieving this goal.

 

 

Notes:

[1] Chia-Chia Chang et al., The Role of Technological Job Displacement in the Future of Work, CDC’s NIOSH Science Blog (Feb. 15, 2022), https://blogs.cdc.gov/niosh-science-blog/2022/02/15/tjd-fow/.

[2] See e.g., Jack Kelly, Goldman Sachs Predicts 300 Million Jobs Will be Lost or Degraded by Artificial Intelligence, Forbes (Mar. 31, 2023), https://www.forbes.com/sites/jackkelly/2023/03/31/goldman-sachs-predicts-300-million-jobs-will-be-lost-or-degraded-by-artificial-intelligence/; G Krishna Kumar, AI-led Job Loss is Real, Govt Must Intervene, Deccan Herald (July 21, 2024), https://www.deccanherald.com/opinion/ai-led-job-loss-is-real-govt-must-intervene-3115077.

[3] Kelly, supra note 2.

[4] Ian Shine & Kate Whiting, These Are the Jobs Most Likely to be Lost – And Created – Because of AI, World Economic Forum (May 4, 2023), https://www.weforum.org/stories/2023/05/jobs-lost-created-ai-gpt/.

[5] Kelly, supra note 2.

[6] See e.g., Peter Dizikes, Does Technology Help or Hurt Employment?, MIT News (Apr. 1, 2024), https://news.mit.edu/2024/does-technology-help-or-hurt-employment-0401.

[7] See e.g., Hillary Hoffower, Financial Stress is Making Us Mentally and Physically Ill. Here’s How to Cope, Fortune (May 10, 2024), https://fortune.com/well/article/financial-stress-mental-health-physical-illness/; Majority of Americans Feeling Financially Stressed and Living Paycheck to Paycheck According to CNBC Your Money Survey, CNBC News Releases (Sept. 7, 2023), https://www.cnbc.com/2023/09/07/majority-of-americans-feeling-financially-stressed-and-living-paycheck-to-paycheck-according-to-cnbc-your-money-survey.html.

[8] Chang et al., supra note 1.

[9] Id.

[10] See e.g., Chris Marr, AI Poses Job Threats While State Lawmakers Move With Caution, Bloomberg Law (Aug. 13, 2024), https://news.bloomberglaw.com/daily-labor-report/ai-poses-job-threats-while-state-lawmakers-move-with-caution.

[11] Sanam Hooshidary et al., Artificial Intelligence in the Workplace: The Federal and State Legislative Landscape, National Conference of State Legislatures (updated Oct. 23, 2024), https://www.ncsl.org/state-federal/artificial-intelligence-in-the-workplace-the-federal-and-state-legislative-landscape.

[12] Kaela Roeder, High School Seniors in Maryland Are Getting Daily AI Training, Technical.ly (Nov. 8, 2024), https://technical.ly/workforce-development/high-school-ai-training-howard-county-maryland/; Maryland to Offer Free AI Training to State Employees, Government Technology (Sept. 25, 2024), https://www.govtech.com/artificial-intelligence/maryland-to-offer-free-ai-training-to-state-employees; Marr, supra note 10 (“A coalition of major tech companies is urging state lawmakers to focus their efforts on retraining workers for newly emerging jobs in the industry.”).

[13] Marr, supra note 10.

[14] Rachel Curry, Recent Data Shows AI Job Losses Are Rising, But the Numbers Don’t Tell the Full Story, CNBC (Dec. 16, 2023), https://www.cnbc.com/2023/12/16/ai-job-losses-are-rising-but-the-numbers-dont-tell-the-full-story.html.

[15] See John Hall, Why Upskilling and Reskilling Are Essential in 2023, Forbes (Feb. 24, 2023), https://www.forbes.com/sites/johnhall/2023/02/24/why-upskilling-and-reskilling-are-essential-in-2023/; The 2020s Will be a Decade of Upskilling. Employers Should Take Notice, World Economic Forum (Jan. 10, 2024), https://www.weforum.org/stories/2024/01/the-2020s-will-be-a-decade-of-upskilling-employers-should-take-notice/.

[16] Press Release, AFL-CIO and Microsoft Announce New Tech-Labor Partnership on AI and the Future of the Workforce, AFL-CIO (Dec. 11, 2023), https://aflcio.org/press/releases/afl-cio-and-microsoft-announce-new-tech-labor-partnership-ai-and-future-workforce.

[17] Josh Bivens & Ben Zipperer, Unbalanced Labor Market Power is What Makes Technologu–Including AI–Threatening to Workers, Economic Policy Institute (Mar. 28, 2024), https://www.epi.org/publication/ai-unbalanced-labor-markets/.

[18] Marr, supra note 10.

[19] Press Release, supra note 16.

[20] See e.g., Roy E. Bahat & Thomas A. Kochan, How Businesses Should (and Shouldn’t) Respond to Union Organizing, Harvard Business Review (Jan. 6, 2023), https://hbr.org/2023/01/how-businesses-should-and-shouldnt-respond-to-union-organizing; Ben Bodzy, Best Practices for Union Avoidance, Baker Donelson (last visited Nov. 18, 2024), https://www.bakerdonelson.com/files/Uploads/Documents/Breakfast_Briefing_11-17-11_Union_Avoidance.pdf; Carta H. Robison, Steps for Employers to Preserve a Union Free Workplace, Barett McNagny (last visited Nov. 18, 2024), https://www.barrettlaw.com/blog/labor-and-employment-law/union-avoidance-steps-for-employers.

[21] Chelsey Sanchez, Everything to Know About the SAG Strike That Shut Down Hollywood, Harpers Bazaar (Nov. 9, 2023), https://www.harpersbazaar.com/culture/politics/a44506329/sag-aftra-actors-strike-hollywood-explained/#what-is-sag-aftra.

[22] Jake Coyle, In Hollywood Writers’ Battle Against AI, Humans Win (For Now), AP News (Sept. 27, 2023), https://apnews.com/article/hollywood-ai-strike-wga-artificial-intelligence-39ab72582c3a15f77510c9c30a45ffc8; Bryan Alexander, SAG-AFTRA President Fran Drescher: AI Protection Was A ‘Deal Breaker’ In Actors Strike, USA Today (Nov. 10, 2023), https://www.usatoday.com/story/entertainment/tv/2023/11/10/sag-aftra-deal-ai-safeguards/71535785007/.

[23] Lara Korte & Jeremy B. White, Newsom Signs Laws to Protect Hollywood from Fake AI Actors, Politico (Sept. 17, 2024), https://www.politico.com/news/2024/09/17/newsom-signs-law-hollywood-ai-actors-00179553; Party Control of California State Government, Ballotpedia, https://ballotpedia.org/Party_control_of_California_state_government (last visited Nov. 18, 2024).

[24] Advocacy: Driving Local Economies, Motion Picture Ass’n, https://www.motionpictures.org/advocacy/driving-local-economies/ (last visited Jan. 17, 2025).

[25] See, e.g., Ryan Essex & Sharon Marie Weldon, The Justification For Strike Action In Healthcare: A Systematic Critical Interpretive Synthesis, 29:5 Nursing Ethics 1152 (2022) https://doi.org/10.1177/09697330211022411; Nina Chamlou, How Nursing Strikes Impact Patient Care, NurseJournal (Oct. 10, 2023), https://nursejournal.org/articles/how-nursing-strikes-impact-patient-care/.

Caught in the Digital Dragnet: The Controversy Over Geofence Warrants and Privacy Rights

January 20, 2025
Constitutional Law, Criminal Law, Data Privacy, Law Enforcement

Yaoyu Tang, MJLST Staffer

 

Picture this: A sunny Saturday afternoon at a bustling shopping mall. Children’s laughter echoes as they pull their parents toward an ice cream stand. Couples meander hand-in-hand past glittering storefronts, while teenagers crowd the food court, joking and snapping selfies. It’s a portrait of ordinary life—until chaos quietly unfolds. A thief strikes a high-end jewelry store and vanishes into the crowd, leaving no trail behind. Frustrated and out of options, law enforcement turns to a geofence warrant, demanding Google provide location data for every smartphone within a quarter-mile radius during the heist. In the days that follow, dozens of innocent shoppers, workers, and passersby find themselves under scrutiny, their routines disrupted simply for being in the wrong place at the wrong time.

This story is not hypothetical—it mirrors real-life cases where geofence warrants have swept innocent individuals into criminal investigations, raising significant concerns about privacy rights and constitutional protections.

Geofence warrants are a modern investigative tool used by law enforcement to gather location data from technology companies.[1] These warrants define a specific geographic area and time frame, compelling companies like Google to provide anonymized location data from all devices within that zone.[2] Investigators then sift through this data to identify potential suspects or witnesses, narrowing the scope to relevant individuals whose movements align with the crime scene and timeline.[3]

The utility of geofence warrants is undeniable. They have been instrumental in solving high-profile cases, such as identifying suspects in robberies, assaults, and even the January 6 Capitol riots.[4] By providing a way to access location data tied to a specific area, geofence warrants enable law enforcement to find leads in cases where traditional investigative techniques might fail.[5] These tools are particularly valuable in situations where there are no direct witnesses or physical evidence, allowing law enforcement to piece together events and identify individuals who were present during criminal activity.[6]

However, the benefits of geofence warrants come with significant risks. Critics argue that these warrants are overly broad and invasive, sweeping up data on innocent bystanders who happen to be in the area.[7] In addition, civil liberties organizations, such as the ACLU and the Electronic Frontier Foundation (EFF), have strongly criticized geofence warrants.[8] They argue that the geofence warrants infringe on privacy rights and disproportionately affect marginalized communities. Without strict limitations, geofence warrants could become tools of mass surveillance, disproportionately targeting marginalized communities or chilling free movement and association. [9] Moreover, this indiscriminate collection of location data raises serious Fourth Amendment concerns, as it can be seen as a form of digital general warrant—a modern equivalent to the invasive searches that the Framers sought to prevent.[10] Tension between their investigative utility and potential for privacy violations has made geofence warrants one of the most controversial tools in modern law enforcement.

The legality of geofence warrants is far from settled, with courts offering conflicting rulings. In United States v. Smith, the Fifth Circuit declared geofence warrants unconstitutional, stating that they amount to general searches.[11] The court emphasized the massive scope of data collected and likened it to rummaging through private information without sufficient cause.[12] The decision heavily relied on Carpenter v. United States, where the Supreme Court held that accessing historical cell-site location information without a warrant violates the Fourth Amendment.[13] In Carpenter, the Court recognized that cell-site location information (CSLI) provides an intimate record of a person’s movements, revealing daily routines, frequent locations, and close personal associations.[14] This information, the Court held, constitutes a “search” within the meaning of the Fourth Amendment, requiring a warrant supported by probable cause.[15] Conversely, the Fourth Circuit in United States v. Chatrie upheld the use of geofence warrants, arguing that users implicitly consent to data collection by agreeing to terms of service with tech companies.[16] The court leaned on the third-party doctrine, which holds that individuals have reduced privacy expectations for information shared with third parties.[17] These conflicting rulings highlight the broader struggle to apply traditional Fourth Amendment principles to digital technologies. The Fifth Circuit’s ruling highlights discomfort with the vast reach of geofence warrants, pointing to their lack of Fourth Amendment particularity.[18] Conversely, the Fourth Circuit’s reliance on the third-party doctrine broadens law enforcement access, framing user consent as a waiver of privacy.[19] This split leaves courts struggling to reconcile privacy with evolving surveillance technology, underscoring the urgent need for clearer standards.

Tech companies like Google play a pivotal role in the geofence warrant debate. Historically, Google stored user location data in a vast internal database known as Sensorvault.[20] This database served as a central repository for location data collected from various Google services, including Google Maps, Search, and Android devices.[21] Law enforcement agencies frequently sought access to this data in response to geofence warrants, making Sensorvault a crucial point of contention in the legal and privacy debates surrounding this technology.[22] However, in 2023, Google announced significant changes to its data policies: location data would be stored on user devices instead of the cloud, backed-up data would be encrypted to prevent unauthorized access, including by Google itself, and default auto-delete settings for location history would reduce data retention from 18 months to three months.[23] These policy changes significantly limit the availability of location data for law enforcement agencies seeking to execute geofence warrants.[24] By storing data locally on user devices and implementing robust encryption and auto-deletion features, Google has effectively reduced the amount of location data accessible to law enforcement.[25] This highlights the significant influence that corporate data policies can exert on law enforcement practices.[26] Other companies, like Apple, have adopted even stricter privacy measures, refusing to comply with all geofence warrant requests.[27]

The debate surrounding the legality and scope of geofence warrants remains contentious. Courts grapple with varying interpretations, legislators struggle to enact comprehensive legislation, and public opinion remains divided. This uncertainty necessitates authoritative guidance. Whether through judicial precedent, legislative reform, or technological advancements that mitigate privacy concerns, achieving a consensus on the permissible use of geofence warrants is crucial. Only with such a consensus can society navigate the delicate balance between public safety and individual privacy rights in the digital era.

 

Notes:

[1] Ronald J. Rychlak, Geofence Warrants: The New Boundaries, 93 MISS. L. Rev. 957-59 (2024).

[2] Id.

[3] Id.

[4] Mark Harris, A Peek Inside the FBI’s Unprecedented January 6 Geofence Dragnet, WIRED(Nov. 28, 2022, 7:00 AM), https://www.wired.com/story/fbi-google-geofence-warrant-january-6/.

[5] Jeff Welty, Recent Developments Concerning Geofence Warrants, N.C. CRIM. L. (Nov. 4, 2024), https://nccriminallaw.sog.unc.edu/recent-developments-concerning-geofence-warrants/.

[6] Prathi Chowdri, Emerging tech and law enforcement: What are geofences and how do they work, POLICE1(Nov. 16, 2023, 9:06 PM), https://www.police1.com/warrants/google-announces-it-will-revoke-access-to-location-history-effectively-blocking-geofence-warrants.

[7] Jennifer Lynch, Is This the End of Geofence Warrants, ELECTRONIC FRONTIER FOUND., https://www.eff.org/deeplinks/2023/12/end-geofence-warrants.

[8] ACLU, ACLU Argues Evidence From Privacy-Invasive Geofence Warrants Should Be Suppressed, https://www.aclu.org/press-releases/aclu-argues-evidence-from-privacy-invasive-geofence-warrants-should-be-suppressed#:~:text=In%20the%20brief%2C%20the%20ACLU,they%20were%20engaged%20in%20criminal.

[9] LYNCH, supra note 7.

[10] Id.

[11] United States v. Smith, 110 F.4th 817 (5th Cir. 2024).

[12] Id. at 28-30.

[13] Id. at 27-29.

[14] Carpenter v. United States, 585 U.S. 296 (2018)

[15] Id.

[16] United States v. Chatrie, 107 F.4th 319 (4th Cir. 2024).

[17] Id. at 326-57.

[18] Smith, 110 F.4th 817, at 27-30.

[19] Chatrie, 107 F.4th 319, at 326-57.

[20] Jennifer Lynch, Google’s Sensorvault Can Tell Police Where You’ve Been, ELECTRONIC FRONTIER FOUND., https://www.eff.org/deeplinks/2019/04/googles-sensorvault-can-tell-police-where-youve-been?.

[21] Id.

 

[22] Id.

[23] Skye Witley, Google’s Location Data Move Will Reshape Geofence Warrant Use, BLOOMBERG L. (Dec. 20, 2023, 4:05 AM), https://news.bloomberglaw.com/privacy-and-data-security/googles-location-data-move-will-reshape-geofence-warrant-use?.

[24] Id.

[25] Id.

 

[26] Id.

 

[27] APPLE, Apple Transparency Report: Government and Private Party Requests, https://www.apple.com/legal/transparency/pdf/requests-2022-H1-en.pdf.

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