Category: Blog Posts Page 22 of 75

By Seely Kaufmann

 

In his inaugural episode of “The Problem with Jon Stewart”, Jon Stewart examined the challenge of burn pit exposure for veterans.[1] These pits were a common feature at military bases across the Middle East – a crude answer to a basic logistics problem.[2] Garbage, including paint, medical and human waste, metal cans, unexploded ordnance, and batteries, was doused in jet fuel and set ablaze, spewing toxic fumes and carcinogens into the air.[3] The Department of Defense (DOD) estimates that roughly 3.5 million service members could have been exposed to burn pits.[4] Current and former military members stationed on bases with these burn pits suffer a myriad of conditions possibly due to the exposure to these chemicals; President Biden has even acknowledged that his son Beau’s deployment to Balad Air Base in Iraq may have been associated to his brain cancer diagnosis, noting “because of exposure to burn pits — in my view, I can’t prove it yet — he came back with stage 4 glioblastoma.”[5] However, the Department of Veterans Affairs has denied approximately 75 percent of veterans’ burn pit claims, because conditions like cancer have not been conclusively linked to exposure to the burn pits.[6]

In part to address this issue, the National Defense Authorization Act for Fiscal Year 2020 was passed by Congress in December 2019, which included two provisions that requires the DOD to draft a plan to eliminate all existing burn pits and provide a list of burn pit sites to the VA.[7]  However, no timeline is associated with that plan.[8] The Secretary of Defense is required to record whether service members have been exposed to an open burn pit, through the Airborne Hazards and Open Burn Pit Registry (AHOBPR) and in routine physical examinations and health assessments.[9] This information should develop of a record that links burn pit exposure to particular health consequences, but this bill did not go far enough, especially given the aggressiveness of the cancers being documented.[10] A two pronged approach of quickly funding research to develop these causal links while simultaneously cutting through the red tape that stops veterans suffering severe medical conditions from receiving treatment should be implemented to fully address the problem.

Even with the issue exposure from a celebrity, bills in both the House and Senate implementing similar measures have continued to languish. No actions have been taken on The Veterans Burn Pits Exposure Recognition Act of 2021 in either the Senate or the House since their introduction in February and April respectively.[11]

 

[1] The Problem with Jon Stewart: War (Apple TV broadcast, Sept. 30, 2021).

[2] Kenzi Abou-Sabe & Didi Martinez, Veterans face uphill battle to receive treatment for ‘burn pit’ exposure, NBC News (Apr. 12, 2021, 5:23 PM), https://www.nbcnews.com/news/military/veterans-face-uphill-battle-receive-treatment-burn-pit-exposure-n1263862.

[3] Jim Absher, What Is The Burn Pit Registry?, Military.com (Aug. 5, 2021), https://www.military.com/benefits/veteran-benefits/what-burn-pit-registry.html.

[4] See Abou-Sabe & Didi Martinez, supra note 2.

[5] Id. (noting that Balad Air Base had one of the largest burn pits spanning more than 10 acres).

[6] Id.

[7] Steve Beynon, Burn pit legislation passed by Congress could lead to improved accountability, better care for vets exposed to hazards, Stars and Stripes (Jan. 14, 2020), https://www.stripes.com/news/burn-pit-legislation-passed-by-congress-could-lead-to-improved-accountability-better-care-for-vets-exposed-to-hazards-1.614684.

[8] Id.

[9] VA Airborne Hazards and Open Burn Pit Registry, U.S. Department of Veterans Affairs, https://www.publichealth.va.gov/exposures/burnpits/registry.asp (last visited Oct. 29, 2021).

[10] See, e.g., Kelly Kennedy, The Enemy Is Lurking in Our Bodies”—Women Veterans Say Toxic Exposure Caused Breast Cancer, The War Horse (Oct. 14, 2021), https://thewarhorse.org/military-women-face-higher-breast-cancer-rates-from-exposure (detailing a military veteran’s diagnosis of three types of Stage 4 breast cancer at age 38 following tours in Fallujah and al-Taqqadum).

[11] See S.437 – Veterans Burn Pits Exposure Recognition Act of 2021, Actions Overview, https://www.congress.gov/bill/117th-congress/senate-bill/437/actions (last visited Oct. 29, 2021); H.R.2436 – Veterans Burn Pits Exposure Recognition Act of 2021, Actions Overview, https://www.congress.gov/bill/117th-congress/house-bill/2436/actions (last visited Oct. 29, 2021).

Image Source: https://media.npr.org/assets/img/2015/12/18/080310-f-5957s-113_custom-2a2816cb2f0c6952905f69550d8a8832536054e9-s1600-c85.webp

By Austin Wade-Vicente

 

A decades long war between big tech companies and concerned consumers reached a new milestone on July 9th, 2021, as President Joe Biden signed the “Executive Order on Promoting Competition in the American Economy.”[1] Among other important initiatives, the Executive Order gives significant deference to the Free Trade Commission (FTC) to investigate “[c]ell phone manufacturers and others blocking out independent repair shops.”[2] Many companies intentionally make repairs unjustly more time consuming and costly by  “impos[ing] restrictions on self and third-party repairs,” through “restricting the distribution of parts, diagnostics, and repair tools.”[3] To better understand the significant impact of this Order, and what it means for a variety of American consumers, we first need to briefly explore the source of the controversy.

Right to Repair concerns first began in the late 1990s, but only further exponentially increased in the digital age with more products relying on computer chips year after year.[4] “You bought it, you should own it” is the short and sweet argument from Right to Repair advocates.[5] Essentially, Right to Repair is the assertion that consumers should have the right to fix the product they own without pressure to solely rely on the manufacturer for repairs or resort to purchasing a brand new device. On the flip side, corporations argue that allowing third-party repair is an attack on quality control, protection of intellectual property rights, prevention of injuries, and the company’s reputation.

However, these entities have gone to the extreme to keep customers from entertaining alternative sources of repair. A surprising number of big tech companies have exerted monopoly power by forcing consumers to either pay for the company’s expensive repairs or buy a new machine.[6] A solution that further contributes to the 2.5 million tons of electronic waste generated by the globe each year.[7] Moreover, multinational tech company Apple has gone so far as to hide schematics from the public, threaten third-party repair companies with DMCA suits, and even invent their own “pentalobe screw” in efforts to maintain control from sale to landfill.[8]

The illusion of having this “benevolent monopoly,” valiantly protecting customers from conniving hackers and incompetent repairmen, shatters when a growing number of consumers accuse the company itself of being the single source of harm in the repair industry.[9] CBC news even caught Apple in an undercover investigation quoting repair prices comparable to a brand-new laptop to avoid even the simplest of repairs.[10] This behavior begged an important question. Who owns the purchased product when the manufacturer can unilaterally decide the consumer is done using it?

Again, prior to President Biden’s Executive Order, the status quo of repair was free reign to nearly exhaust of all of the public’s options to fix their property, avoid transparency, and force customers to pay artificially high prices for basic maintenance—­­­if done at all. After the Order, the FTC found that monopolizing repair services, the associated repair information, parts, and their necessary tools is plainly anticompetitive.[11]

Just after the release of President Biden’s Executive Order, the FTC unanimously voted to agree to investigate if tech company repairs are “breaking antitrust or consumer protection laws, and to step up enforcement of the laws against violators.”[12] The goal of this investigation, if successful, is “to push harder for the right of consumers to repair devices like smartphones, home appliances, cars and even farm equipment.”[13] Yes, you read that right. The Executive Order’s mention of “others blocking out independent repair shops” includes those providing farm equipment, going well beyond consumer electronics.[14]

Farmers have an immensely time sensitive job, and therefore, need to be able to get under the hood to fix their machines when in the field.[15] Many farmers already work 80 hours a week during harvest, and some have already faced legal repercussions from John Deere for trying to fix their own machines.[16] While waiting upwards of weeks for certified John Deere repairman to fix their fancy internet-connected tractors, some farmers have actually turned to using 40-year-old models to reliably complete harvest seasons.[17] As a result, Right to Repair not only impacts prices of consumer electronics and maintenance, but, more importantly, our food supply chain as well.

Farmers are not the only professionals that would benefit from robust Right to Repair enforcement either, as service members have run into many of the same issues. United States Marine Corps. Captain Elle Ekman was stunned when one of her Marines gave a warranty excuse for refusing to fix a generator in the field.[18] She had no idea a civilian concept like Right to Repair could affect her military career, but it became abundantly clear every time Marines sent equipment back home that they were “los[ing] the opportunity to practice the skills they might need one day on the battlefield.”[19] “Vendor control over warranty repairs is a completely unworkable scheme in wartime” as prompt maintenance could mean the difference between life and death for service men and women.[20] In response, President Biden gave the Secretary of defense 180 days to make a plan to avoid terms that impede service members from repairing their own equipment, “particularly in the field.”[21]

Despite the numerous reasons why Right to Repair should be adopted, it remains to be seen if measures taken by the FTC will pass into law.[22] If no one takes action on the federal level, 27 states have passed Right to Repair legislation that helps combat many of the previously explored problems.[23] However, much like other state regulations, these Right to Repair laws are not uniform. For example, the state of Washington only enforces Right to Repair laws on consumer devices, while South Carolina only focuses on ag equipment.[24]

“‘It isn’t like we’re asking for something that’s impossible,” remarked Special Assistant to the President for Tech and Competition Policy Tim Wu.[25] “Provide parts, provide information and let people really feel like they own their own devices.”[26] If the FTC finds ample evidence of violation of antitrust or consumer protection laws there may be top-down enforcement from the federal government. Until then, only time will tell if farmers, service members, and the everyday consumer will be free to claim ownership of their respective devices.

 

[1] Exec. Order No. 14,036, 86 Fed. Reg. 36987 (2021); Emily Matchar, The Fight for the “Right to Repair,” Smithsonian (July 13, 2016), https://www.smithsonianmag.com/innovation/fight-right-repair-180959764/.

[2] Id.

[3] Id.

[4] See Matchar, supra note 1; Thorin Klosowski, What You Should Know About Right to Repair, N.Y. Times (July 15, 2021), https://www.nytimes.com/wirecutter/blog/what-is-right-to-repair/.

[5] The Repair Association, Repair, https://www.repair.org/.

[6] See Andrew Thompson, The Fix Is Out: Product Repairs Get Tougher in New Age of Obsolescence, NBC News (July 31, 2016, 2:30 PM), https://www.nbcnews.com/news/us-news/fix-out-product-repairs-get-tougher-new-age-obsolescence-n614916.

[7] See Vanessa Forti, Global Electronic Waste Up 21% in Five Years, and Recycling isn’t Keeping Up, The Conversation (July 10, 2020, 10:38 AM), https://theconversation.com/global-electronic-waste-up-21-in-five-years-and-recycling-isnt-keeping-up-141997.

[8] Kyle Wiens, Apple Is Bullying a Security Company with a Dangerous DMCA Lawsuit, iFixit (Jan. 2, 2020), https://www.ifixit.com/News/34892/apple-is-bullying-a-security-company-with-a-dangerous-dmca-lawsuit; Kyle Wiens, Apple’s Diabolical Plan to Screw Your iPhone, iFixit (Jan. 20, 2011), https://www.ifixit.com/News/14279/apples-diabolical-plan-to-screw-your-iphone.

[9] Nathan Protor, Here’s How Manufacturers Argue Against Repair, U.S. PIRG (July 1, 2019), https://uspirg.org/blogs/blog/usp/here%E2%80%99s-how-manufacturers-argue-against-repair.

[10] See CBC News: The International, Apple Under Fire for Allegations of Controversial Business Practices, YouTube, at 1:48–6:00, (Oct. 18, 2018), https://www.youtube.com/watch?v=_XneTBhRPYk.

[11] Michael Kan, FTC Calls Out Tech Companies for Onerous Right-to-Repair Restrictions, PCMag (May 7, 2021), https://www.pcmag.com/news/ftc-calls-out-tech-companies-for-onerous-right-to-repair-restrictions.

[12] Aishvarya Kavi, The F.T.C. Votes to Use Its Leverage to Make it Easier for Consumers to Repair Their Phones, N.Y. Times (July 21, 2021), https://www.nytimes.com/2021/07/21/us/politics/phones-right-to-repair-FTC.html.

[13] Id.

[14] Exec. Order No. 14,036, supra note 1.

[15] Jonathan Ahl, Right to Repair Mandate From Biden Might Help Farmers Fix Their Own Equipment, Harvest Public Media (Aug. 5, 2021), https://www.harvestpublicmedia.org/post/right-repair-mandate-biden-might-help-farmers-fix-their-own-equipment.

[16] Nicky Ellis, How Many Hours Do Farmers Work?, Farm & Animals (Nov. 25, 2020) https://farmandanimals.com/how-many-hours-do-farmers-work/#:~:text=During%20the%20harvest%2C%20a%20farmer,about%2060%20hours%20a%20week; Jordan Almond, Farmers Across America Are Suing for the Right to Repair Their John Deere Tractors, Motor Biscuit (July 15, 2021), https://www.motorbiscuit.com/farmers-america-right-to-repair-john-deere-tractors/.

[17] Kari Paul, Why Right to Repair Matters – According to a Farmer, a Medical Worker, a Computer Store Owner, The Guardian (Aug. 2, 2021, 6:00 AM), https://www.theguardian.com/technology/2021/aug/02/why-right-to-repair-matters-according-to-a-farmer-a-medical-worker-a-computer-store-owner.

[18] Elle Ekman, Here’s One Reason the U.S. Military Can’t Fix Its Own Equipment, N.Y. Times (Nov. 20, 2019) https://www.nytimes.com/2019/11/20/opinion/military-right-to-repair.html.

[19] Id.

[20] Kyle Mizokami, The U.S. Military Has a ‘Right to Repair’ Problem, Popular Mechanics (Feb. 11, 2020), https://www.popularmechanics.com/military/weapons/a30859791/us-military-right-to-repair/.

[21] Exec. Order No. 14,036, supra note 1.

[22] Nadeem Sarwar, What Biden’s Right-To-Repair Executive Order Means For You, ScreenRant (July 12, 2021), https://screenrant.com/right-to-repair-executive-order-explainer-and-details/.

[23] Nathan Proctor, Half of U.S. states looking to give Americans the Right to Repair, U.S. PIRG (Mar. 10, 2021), https://uspirg.org/blogs/blog/usp/half-us-states-looking-give-americans-right-repair.

[24] Id.

[25] Joanna Stern, How the ‘Right to Repair’ Might Save Your Gadgets—and Save You Money, Wall Street Journal (Aug. 30, 2021), https://www.wsj.com/articles/how-the-right-to-repair-might-save-your-gadgetsand-save-you-money-11630324800.

[26] Id.

Image Source: https://www.cleanwateraction.org/2021/02/01/sb0412hb0084-right-repair-and-why-matters-environment

By Annalisa Gobin

 

In the Spring of this year, Apple released its new AirTags, small tracking devices that emit Bluetooth signals so that users can locate lost items using Apple’s Find My network.[1] While they are advertised to help retrieve misplaced items like keys and wallets, consumers have found that the new product is more versatile than Apple likely anticipated.[2] AirTags are now being attached to cars, bikes, and bags as an efficient form of theft prevention.[3] With consumers finding various ways to utilize the new gadget, there has been a rise in recent discussions on whether AirTags are a nifty product to prevent theft or a dangerous tool that promotes stalking.[4]

Since their April release, there have been several reports of consumers using AirTags to combat several forms of crime.[5] One consumer used his AirTag to help the police locate and retrieve his stolen gaming computer.[6] In Oregon, a lawyer used AirTags to prove that city contractors were immediately dumping the belongings of homeless people after clearing out their campsites, instead of saving the property for a month as required by law.[7] Additionally, parents have been using AirTags to track their children (although Apple warns that the product is not a GPS tracker and that the location updates are too sporadic to track moving objects).[8] This is good news for those wanting to protect personal property, and to some extent, ward off potential kidnappers.

However, there is concern that AirTags and their tracking feature may aid stalkers and domestic abusers in harassing victims.[9]

Apple has made attempts to limit the use of the AirTags as a stalking tool.[10] If an iPhone detects that an AirTag is following it, it will display a notification.[11] In addition, if the tracker is away from its owner’s iPhone for more than three days, it will beep.[12] However, if a tracking victim owns a phone other than an iPhone, there is no way for that user to receive the same notification that they are being tracked.[13] There have also been reports that the 15-second beep is not loud enough to be heard over common household noises.[14] In June, Apple addressed these concerns by releasing an update to the devices to beep randomly between 8 and 24 hours if it is away from its owner’s iPhone.[15] Apple has planned to launch an app that will allow Android users to determine whether an AirTag is traveling with them.[16] Apple has also embedded a serial number into each AirTag, which they argue can be used as evidence in court to identify trackers and prosecute stalking crimes.[17]

Critics warn that these new safety features may not be enough to stop digital tracking, which has been linked to physical abuse and murder.[18] The coin-sized devices are so small that they can easily be buried into a car seat or under a carpet to muffle the sound of the notification beep.[19] Further, the notification beep does nothing for victims who live with their abusers who can prevent the sound from going off by periodically bringing their phone back into proximity with the AirTag. Furthermore, as of the time of this post, Apple has yet to release the app so that android users can be alerted when they are being tracked.[20]

Without implementing additional safety features, it is worth considering if the ability to find your keys in a split-second or recover a stolen bike is worth the risk of the crimes that AirTags may help perpetrators carry out.

 

[1] Heather Kelley, I found my stolen Honda Civic using a Bluetooth tracker. It’s the Latest Controversial Weapon Against Theft, Wash. Post (Oct. 28, 2021, 7:00 AM), https://www.washingtonpost.com/technology/2021/10/28/airtags-theft/.

[2] Id.

[3] Id.

[4] See id.

[5] See id.; Brianna Provenzano, Apple Airtags Used to Prove That Contractor Illegally Trashed Unhoused People’s Property, Gizmodo (Aug. 4, 2021, 11:20 AM), https://gizmodo.com/apple-airtags-used-to-prove-that-contractor-illegally-t-1847421031.

[6] Kelley, supra note 1.

[7] Provenzano, supra note 5.

[8] Morgan Brinlee, No, Apple Doesn’t Want Parents To Track Their Kids With AirTags, Romper (Apr. 22, 2021), https://www.romper.com/life/no-apple-doesnt-want-parents-using-airtags-to-track-their-kids.

[9] Albert Fox Cahn & Eva Galperin, Apple’s AirTags Are a Gift to Stalkers, Wired (May 13, 2021, 9:00 AM), https://www.wired.com/story/opinion-apples-air-tags-are-a-gift-to-stalkers.

[10] See Geoffrey A. Fowler, Apple’s AirTag Trackers Made It Frighteningly Easy to ‘Stalk’ Me in a Test, Wash. Post (May 5, 2021, 8:00 PM), https://www.washingtonpost.com/technology/2021/05/05/apple-airtags-stalking.

[11] See id.

[12] Id.

[13] Id.

[14] Apple Updates AirTags After Stalking Fears, BBC News (June 4, 2021), https://www.bbc.com/news/technology-57351554.

[15] Id.

[16] Id.

[17] Id.

[18] Fowler, supra note 10.

[19] Id.

[20] Id.

Image Source: https://www.macrumors.com/guide/airtags

By Hannah Ceriani

 

In 2019, journalist Kashmir Hill wrote a New York Times article about a company that was quietly aiding in privacy violations.[1] The company Clearview AI has developed a facial recognition app, which is essentially a database of billions of images copied from millions of websites like Facebook, YouTube, and Venmo.[2]

The app can potentially identify anyone since the “computer code underlying [the] app…includes programming language to pair it with augmented-reality glasses.”[3] A person could be anywhere in public doing anything, and the app could reveal that person’s name, home address, career, and any other information that is out there on the Internet.[4]

Six hundred police departments were using the app less than three years after it was released to help solve various types of crimes, including murders and kidnappings.[5] Those law enforcement agencies have since copied 10 billion photographs.[6] They have done so without consent from the individuals who uploaded the photos, without authorization from the companies behind the websites where the photos were originally uploaded, and without the knowledge of the general public.[7]

Obviously, the use of facial recognition technology could quickly become a major violation of First and and Fourth Amendment rights. When used in public, this technology has a high likelihood of halting unabridged free speech and peaceful assembly because it could be seen as a form of surveillance.[8] Viewing facial recognition technology in this light, it is plausible that people will begin to alter their behavior because of the feeling that they are always being watched, particularly by law enforcement.[9]

The Supreme Court addressed Fourth Amendment privacy issues in the case Carpenter v. States.[10] Chief Justice Roberts noted that the ability of police to “secretly monitor and catalogue every single movement” of a person is unconstitutional and violates what society perceives law enforcement’s job to be.[11] The Court suggested that a person’s “privacies of life” should be protected.[12] The Court considered those privacies to include an individual’s “familial, political, professional, religious, and sexual associations,” which could be determined by using such technology.[13]

Large tech companies like Google and IBM have refrained from using similar technology in response to such concerns.[14] Only ten states have taken any sort of action to regulate the use of facial recognition by law enforcement.[15] Some cities, like Detroit, Chicago, and San Francisco have also enacted their own regulations and legislative bans.[16]

However, these statutes and regulations are not doing enough. There are two main issues: loopholes in the current legislation and regulation, and the lack of uniformity to address the violation of Constitutional rights. The most pressing concern with facial recognition technology is the lack of restrictions by the federal government.[17] In fact, many tech companies have advocated for federal regulation of this technology, but Congress has yet to pass any laws regulating police use of facial recognition.[18]

 

[1] Kashmir Hill, The Secretive Company That Might End Privacy as We Know It, N.Y. Times (Jan. 18, 2020) https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html.

[2] Id.

[3] Id.

[4] Id.

[5] Amanda Levendowski, Resisting Face Surveillance with Copyright Law, 100 N.C.L. (forthcoming 2022) (manuscript at 3).

[6] Id.

[7] Id.

[8] Clare Garvie & Laura M. Moy, America Under Watch: Face Surveillance in the United States, Geo. L. Ctr. for Priv. & Tech. (May 16, 2019), https://www.americaunderwatch.com/.

[9] See id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Hill, supra note 1.

[15] Levendowski, supra note 5 (manuscript at 24).

[16] Id. (manuscript at 20).

[17] See Garvie, supra note 8.

[18] Lauren Feiner & Annie Palmer, Rules Around Facial Recognition and Policing Remain Blurry, CNBC (June 12, 2021, 9:30 AM), https://www.cnbc.com/2021/06/12/a-year-later-tech-companies-calls-to-regulate-facial-recognition-met-with-little-progress.html.

Image Source: https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html

By Jeffrey Phaup

 

Automatic license plate readers are now being marketed to private parties. One example is a company called Flock Safety, which provides such plate readers to homeowners associations with the promise that they will provide peace of mind to residents, even if they already have nothing to be worried about.[1] The cameras give residents access to a wealth of plate and location data that is often shared with local law enforcement.[2]

Flock’s “safety-as-a-service” packages cost $2,500 a year per camera, with the scanners promoted for their crime-fighting powers.[3] The systems initially deployed mostly in gated communities, but recently the systems have now spread to practically all types of neighborhoods across the United States.[4] Flock Safety systems have been installed in more than 1,400 cities across 40 states and capture data from more than a billion cars and trucks each month.[5]

Photos captured by the scanners are placed in a neighborhood’s private Flock database and are made available for homeowners to search and scrutinize.[6] Machine-learning software categorizes each vehicle based on two dozen attributes, including its color, make and model; what state its plates came from; and whether it had bumper stickers or a roof rack.[7] Each scanned vehicle is then pinpointed on a map and is tracked based on how frequently it is scanned by the system.[8] Vehicle plates are compared to law enforcement records in order to check for abducted children, stolen cars, missing people and wanted fugitives.[9]

Flock cameras were installed in Dayton, Ohio, as part of a months-long trial for the local police, with a disproportionate number of the cameras placed in the heart of the city’s Latino community.[10] One camera was even placed outside a church where local immigrant families gathered and attended Mass.[11] These cameras were eventually removed after the community targeted by the surveillance complained.[12]

License plate scanners track individuals’ comings and goings with the data can showing both common and unique travel patterns; and because license plates are required by law, there is no obvious way to effectively remain anonymous.[13] Vendors of license plate scanners market their products using the idea that surveillance will reduce crime by either advertising the presence of surveillance in hopes it will be a deterrent or by using the technology to secure convictions of people that have allegedly committed crimes.[14] However, despite what vendors claim, there is no empirical evidence that shows the scanners actually reduce crime.[15]

 

[1] See generally Tim Cushing, The Newest Growth Market For License Plate Readers Is Those Assholes Running The Local Homeowners Association, TechDirt (July 26, 2021), https://www.techdirt.com/articles/20190724/17315042647/newest-growth-market-license-plate-readers-is-those-assholes-running-local-homeowners-association.shtml [https://perma.cc/6KFC-F5JJ].

[2] See generally Drew Harwell, License plate scanners were supposed to bring peace of mind. Instead they tore the neighborhood apart., Washington Post (Oct. 22, 2021), https://www.washingtonpost.com/technology/2021/10/22/crime-suburbs-license-plate-readers/ [https://perma.cc/LHP5-FTE4].

[3] See generally Introducing a better way to defeat crime., Flock Safety (last visited Oct, 22, 2021) https://www.flocksafety.com/ [https://perma.cc/H666-4MYY].

[4] Harwell, supra note 2.

[5] Id.

[6] Id.

[7] See generally Jason Kelly & Matthew Guariglia, Things to Know Before Your Neighborhood Installs an Automated License Plate Reader, Electronic Frontier Foundation (Sept. 14, 2021), https://www.eff.org/deeplinks/2020/09/flock-license-plate-reader-homeowners-association-safe-problems [https://perma.cc/QU7B-YZUB].

[8] Hartwell, supra note 2.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Kelly & Guariglia, supra note 7.

[14] Id.

[15] Id.

By Alexis Laundry

 

Last month, Dominion Energy announced a new project to re-develop 1,200 acres of formerly coal-mined land in Southwest Virginia into a 50-megawatt solar farm.[1] The project is in collaboration with the non-profit The Nature Conservancy, a global organization whose mission is “to conserve the lands and water on which all life depends” that owns the land where the project will be built.[2] In 2019, the Conservancy acquired 253,000 acres of Appalachian forest land across Southwest Virginia, Kentucky and Tennessee.[3] Within the parcel, about 13,000 acres is cleared former mine lands, much of which may potentially be used for solar development.[4] Over the past year, the organization has begun getting several projects off the ground by partnering with both independent developers and utility companies. In May, the Conservancy announced a partnership with the development firms SunTribe and Sol Systems to build 75 MW of capacity on around 550 acres of the cleared mine lands, most of which are located in Virginia.[5] Through these and the Dominion project, the Conservancy hopes to showcase the feasibility of re-purposing former coal mines into revenue generating renewable energy projects.[6]

The idea of repurposing coal mined land into renewable energy projects is nothing new, but it has been slow to take off in Virginia, despite the state hosting an estimated 100,000 acres of land impacted by coal mining.[7] In many ways, former mining sites are ideal for solar development. These sites typically suffer from various contamination or safety issues, which make them unsuitable for most industrial or commercial reuse opportunities; as a result, many sit vacant.[8] They have already been cleared and graded, which circumvents many problems that proposed solar sites on farm or forested land run into.[9] There is plenty of access to infrastructure nearby, including transmission lines and roads.[10] And most importantly, Southwest Virginia’s mining region gets ample sunlight. While there are certainly some challenges that accompany development on mine land, such as more extensive permitting processes, contamination control requirements, and potential liability for remediation efforts, these can usually be overcome by good planning processes and technological solutions.[11]

The payoff of supporting these projects is potentially huge. Redevelopment of abandoned mines is accompanied by a host of environmental and economic benefits that would otherwise go unrealized. First, interest in developing these areas will facilitate the cleanup of contaminated sites, which will cause a domino effect of positive ecological effects. In order to make the sites more attractive to developers, local governments will be more motivated to fund and execute cleanups; these remediation efforts in turn lead to removal of contamination sources, improvement of water quality, and restoration of local ecosystems.[12] Second, installing renewable energy projects will contribute to an overall reduction in greenhouse gas emissions in the region and promote the transition away from fossil fuel usage, which is of course vital to curbing the effects of climate change.[13] In terms of economic benefits, these projects will lead to local job creation, increased revenue, and the revitalization of the energy industry in the region.[14] In one of the state’s most economically distressed regions, these opportunities could prove invaluable.[15]

With much to gain and very little to lose, it seems counterintuitive that the mountains of Southwest Virginia aren’t yet covered in solar panels. Historically, a lack of funding was at least partially to blame for the state’s slow pace in implementing mine land solar projects.[16] The good news is that recent developments are making funding less of an issue; there are state and federal grant programs for abandoned mine land remediation[17], COVID-19 relief funding and the new federal infrastructure bill could be used to support development in the region[18], and the Virginia Clean Economy Act requires Dominion to invest in renewable projects on “previously developed sites.”[19] Hopefully, with new funding streams available and organizations like the Nature Conservancy willing to be the first to take the plunge, the next few years will prove promising for solar development in Virginia’s coal country.

 

[1] The Nature Conservancy, Dominion Energy Announce Innovative Collaboration for Solar Development on Former Coal Mine in Southwest Virginia, Dominion Energy (Sept. 13, 2021), https://news.dominionenergy.com/2021-09-13-The-Nature-Conservancy,-Dominion-Energy-Announce-Innovative-Collaboration-for-Solar-Development-on-Former-Coal-Mine-in-Southwest-Virginia [hereinafter Dominion Announcement].

[2] Id.

[3] Adam Bloom, The Cumberland Forest Project: 253,000 Acres of Preserved Land, Nature Conservancy (July 14, 2019), https://www.nature.org/en-us/what-we-do/our-priorities/protect-water-and-land/land-and-water-stories/cumberland-forest-project/.

[4] Elizabeth McGowan, Conservation group plots solar potential for retired Appalachian coal mine land, Energy News Network (May 18, 2020), https://energynews.us/2020/05/18/conservation-group-plots-solar-potential-for-retired-appalachian-coal-mine-land/.

[5] Elizabeth McGowan, Conservancy charts a solar showcase on the coalfields of Central Appalachia, Energy News Network (May 12, 2021), https://energynews.us/2021/05/12/conservancy-charts-a-solar-showcase-on-the-coalfields-of-central-appalachia/.

[6] Dominion Announcement, supra note 1.

[7] Sarah Vogelsong, Can Southwest Virginia remake itself as a laboratory for renewables?, VA Mercury (Sept. 20, 2021, 12:02 AM), https://www.virginiamercury.com/2021/09/20/can-southwest-virginia-remake-itself-as-a-laboratory-for-renewables/.

[8] U.S. EPA, Shining Light on a Bright Opportunity 1 (2011), https://semspub.epa.gov/work/HQ/176032.pdf

[9] Vogelsong, supra note 7.

[10] Id.

[11] See The Solar Foundation, Large-Scale Solar Development: A Playbook For Southwest Virginia

19–20 (2020), https://solsmart.org/wp-content/uploads/Solar_Playbook_SWVA-8c1.pdf; Steve Goodbody, Building Solar Projects on Brownfields Is Hard Work. But There’s Massive Upside to Getting It Right, Greentech Media (July 8, 2016), https://www.greentechmedia.com/articles/read/building-solar-projects-on-brownfields-is-hard-work.

[12] See U.S. EPA, supra note 8, at 9.

[13] Id.

[14] Id. at 9­–10.

[15] See Vogelsong, supra note 7.

[16] See id.

[17] Abandoned Mine Land, VA Dept. of Energy, https://energy.virginia.gov/coal/mined-land-repurposing/Abandoned-Mine-Land.shtml (last visited Oct. 22, 2021); see also The Solar Foundation, supra note 11, at 20.

[18] See Vogelsong, supra note 7.

[19] Elizabeth McGowan, Meet the Virginia conservationist trying to turn old coalfields into solar farms, Energy News Network (Sept. 29, 2021), https://energynews.us/2021/09/29/meet-the-virginia-conservationist-trying-to-turn-old-coalfields-into-solar-farms/.

Image Source: https://mma.prnewswire.com/media/1624172/Dominion_Highlands_Solar.jpg?p=original

By Christopher Vinson

 

The buying and selling of real estate is an everyday occurrence. Even during the COVID-19 pandemic, the housing market thrived as homeowners saw large increases in the prices of their homes.[1] A perfect convergence of factors resulted in increased demand for homebuying during the pandemic.[2] The final step in completing such a transaction is the real estate closing process.[3] Historically, this process required in-person notarization.[4] However, over the last decade, and increasingly so during the pandemic, there has been legislation both proposed and adopted digitizing notarization to simplify the process of homebuying.

In 2012, Virginia was the first state to pass Remote Online Notarization (RON) legislation.[5] This law allows a signer, subject to certain requirements, to appear before a notary at the time of notarization using audio-visual technology over the internet instead of being in the same room.[6] The notary as the agent can now confirm your identity, witness your signature, and electronically notarize the document.[7]

Prior to the pandemic, RON legislation had been adopted in twenty-two states across the country.[8] States without RON laws quickly adopted remote notarization during the pandemic.[9] As of August, 2021 fourteen of these states proceeded to adopt permanent RON laws, while the rest allowed their states of emergency to lapse without permanent adoption.[10] Additionally, legislation in the United States Senate was reintroduced to permit RON nationwide.[11] The Securing and Enabling Commerce Using Remote and Electronic Notarization Act (SECURE) would require the use of tamper-evidence technology and calls for multifactor authentication to reduce the risk of fraud.[12] While not yet adopted, SECURE demonstrates the increased nationwide focus on RON legislation.

This widespread adoption of RON legislation amongst the state legislatures saw companies increasingly offer digital closing services to their clients. One survey conducted by the American Land Title Association found that number of companies offering digital closings increased by 228% in 2020.[13] In 2019, only sixteen percent of companies offered digital closings compared to forty-six percent of companies in 2021.[14] This widespread adoption of RON saw its use increase by 547% in 2020 compared to 2019.[15]

Consequently, there has been an increase in the amount of e-mortgages closed around the nation.[16] The first six months of 2020 saw the volume of e-mortgages being purchased by Fannie Mae and Freddie Mac increase compared to prior years.[17] This spike was directly attributed to companies increasing their digital closing capabilities during the pandemic.[18] This followed the modification of Fannie Mae and Freddie Mac policies that allowed those institutions to accept RON.[19]

Digital closings were especially popular with consumers. Most transactions over the last year required remote closings, and one survey found that ninety percent of those customers were satisfied.[20] Eighty-two percent of those respondents also stated that they would prefer e-signing documents prior to closing and roughly two-thirds stated that they would prefer remote closings in the future.[21]

Despite the perceived ease with which RON operates, there are still concerns over its increased implementation. States, such as California, have cited privacy and security concerns in their refusal to adopt RON legislation.[22] There is also the ever-present possibility of identity fraud. In-person verification is an effective safeguard against identity fraud but identification over the internet is slightly riskier.[23] There are also concerns with the execution of the necessary documents.[24] Any defect in the documents would eliminate any of the convenience factor associated with digital closings.[25] However, these issues are fixable, and the increased popularity and exposure of RON during the pandemic likely means that most states will inevitably adopt similar statutes.

 

[1] Jerusalem Demsas, COVID-19 Caused a Recession. So Why did the Housing Market Boom?, Vox  (Feb. 5, 2021, 9:00 AM ), https://www.vox.com/22264268/covid-19-housing-insecurity-housing-prices-mortgage-rates-pandemic-zoning-supply-demand.

[2] See id.

[3] Than Merrill, Everything There is to Know About a Real Estate Closing, Fortune Builders, https://www.fortunebuilders.com/real-estate-closing/ (last visited Oct. 20, 2021).

[4] James Kleimann, Notarize and Realogy Title Group See 200% Spike in RON Closings, Housing Wire (Sept. 9, 2020, 11:18 AM), https://www.housingwire.com/articles/notarize-and-realogy-title-group-see-200-spike-in-ron-closings/.

[5] Diana Sievers, Nearly 10 Years Later, The First State to Enact RON Legislation is Accelerating RON Adoption, Qulia Insight (June 11, 2021), https://blog.qualia.com/ron-adoption-va/.

[6] See Va. Code Ann. § 47.1-6.1 (2021).

[7] Audrey Barker, How Does eClosing with Remote Online Notarization Work?, Spruce (Apr. 1, 2020),  https://spruce.co/blog/how-does-eclosing-with-remote-online-notarization-work.

[8] Jeff Clabaugh, Home Sale Closings can be Done Remotely for Social Distancing, but There’s a Catch, WTOP News (Apr. 13, 2020, 10:45 AM), https://wtop.com/business-finance/2020/04/home-sale-closings-can-be-done-remotely-for-social-distancing-but-theres-one-catch/.

[9] DLA Piper, Remote Notarization is Here to Stay, Lexology (Aug. 4, 2021), https://www.lexology.com/library/detail.aspx?g=3f57867c-4d5f-4b03-8db5-b8f7dad71c2.

[10] Id.

[11] Tim Glaze, Digital Closing have Spiked 228% Since 2019, Housing Wire (July 8, 2021, 11:43 AM), https://www.housingwire.com/articles/digital-closings-have-spiked-228-since-2019/.

[12] Id.

[13] Id.

[14] Id.

[15] ALTA Vendor Survey Shows 547 Percent Spike in RON Use, American Land Title Association (Dec. 8, 2020), https://www.alta.org/news/news.cfm?20201208-ALTA-Vendor-Survey-Shows-547-Percent-Spike-in-RON-Use.

[16] Bill Burding, Remote Online Notarization is the Proper Path Forward for Digital Closings, Housing Wire (Nov. 9, 2020, 12:43 PM), https://www.housingwire.com/articles/remote-online-notarization-is-the-proper-path-forward-for-digital-closings/.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] See Kristina Sherry, Unmoved by COIVID-19, California Remains a Holdout on Remote Online Notarizations, Golden State Lawyer (May 11, 2021), https://www.goldenstatelawyer.com/2021/05/unmoved-by-covid-19-california-remains-a-holdout-on-remote-online-notarizations/.

[23] See Paul Centopani, RON Use Went up in 2020. Here’s Why More Lenders Won’t Adopt it, American Banker (Dec. 30, 2020, 2:02 PM), https://www.americanbanker.com/list/ron-use-went-up-in-2020-heres-why-more-lenders-wont-adopt-it.

[24] Id.

[25] Id.

Image Source: https://www.thompsoncoburn.com/insights/publications/item/2020-03-30/electronic-signatures-and-remote-online-notarizations-during-covid-19

By Madison Blevins

 

As the world has worked on adapting to the many ever-changing adjustments from the world-wide pandemic of 2020, COVID-19, many have had to switch to remote work in order to have continued success and efficiency in a socially-distanced world.[1] And civil and criminal attorneys are no different. In a change that seemed to happen almost overnight, the legal profession was thrust into what was arguably the biggest change in procedure it had seen in decades.[2] Due to necessity, the previous rules that judges had for likely their whole careers about in person conferences and hearings were thrown out the window.[3] In addition to courtroom changes, interactions with clients saw a large transformation as well.[4] Attorneys practice remotely, are now able to meet with clients virtually, and can notarize and review important documents online, as well as argue important cases via platforms like Zoom.[5] But as the world has slowly started to return to a new “normal,” the question has become what the practice of law will look like going forward.[6]

In what seems to be a move of efficiency, lawyers can expect courts to continue with virtual proceedings even after the pandemic, according to a recent survey by Thomson Reuters.[7] After surveying more than 238 judges and other court staff and officials in state, county, and municipal courts in June about the continuing impact of COVID-19 on court proceedings, the overwhelming response was that respondents were involved in remote proceedings both last year and this year.[8] With so many proceedings being held remotely last year, it is unsurprising that the hybrid-model will be here to stay.[9] Gina Jurva, who authored the report, wrote that “[t]he next phase of hybrid hearings will require courts to deploy a platform of optimized, seamless technology to avoid more backlogs and disruptions. Court administrators will need to find the right technology that allows lawyers and litigants to focus on the substance of proceedings, not the procedural, audio, and visual aspects of it.”[10] Despite these potential technological challenges that lie ahead, lawyers seemed to have adapted well to the rapid change going on in the industry.[11] Nearly half of all firms surveyed by MyCase in 2020 were able to move from office to home in less than one day, and 80% of those surveyed have transitioned to working remotely some or all of the time.[12] This seems to suggest that despite being able to work remotely in the past, a majority of firms have had the ability to work from home, but simply lacked the desire to do so.[13]

While efficiency and morale may be up for some remote workers, there are certainly disadvantages to having to work from home.[14] Among other things, main factors that will be heavily impacted are practice management, work culture, productivity, clients, and security of important files.[15] Not everyone works well in a remote culture, and so it will be up to attorneys and their firms to ensure that work product and client relationships do not suffer as a result of the transition to remote work.[16]

Despite the above addressed advantages and disadvantages, remote work is here to stay. Whether it is a hybrid model or fully remote, almost all firms and jurisdictions have found a way to make proceedings and client interactions in both the civil and criminal field work remotely when necessary.[17] Therefore, attorneys, judges, and firms need to either adapt or fail, since these technological industry changes are ones that the law practice simply cannot afford to ignore.[18]

 

[1] See Laura LaBerge et al., How COVID-19 Has Pushed Companies Over the Technology Tipping Point – and Transformed Bus. Forever, McKinsey & Company (Oct. 21, 2021, 3:39 PM), https://www.mckinsey.com/business-functions/strategy-and-corporate-finance/our-insights/how-covid-19-has-pushed-companies-over-the-technology-tipping-point-and-transformed-business-forever.

[2] Adapt or Fail: Industry Changes Law Firms Can’t Afford to Ignore, ABA TechReport 2020, (Oct. 21, 2021, 3:43 PM), https://www.americanbar.org/groups/law_practice/publications/techreport/2020/sponsored-mycase/ [herein after “Adapt or Fail”].

[3] See id.

[4] See id.

[5] See id.

[6] See generally Adapt or Fail, supra note 2 (discussing how law firms are generally adapting to the pandemic related technological changes); Jacqueline Thomsen, Virtual Court Hearings Are Here to Stay Post-Pandemic, Survey Finds, LAW.COM (Oct. 21, 2021, 3:51 PM) https://www.law.com/nationallawjournal/2021/08/18/virtual-court-hearings-are-here-to-stay-post-pandemic-survey-finds/?slreturn=20210921150011 (discussing how remote work for attorneys is here to stay) [herein after “Virtual Court”].

[7] See Virtual Court, supra note 6.

[8] Id.

[9] Id.

[10] Id.

[11] See Adapt or Fail, supra note 2.

[12] Id.

[13] Id.

[14] See Surprising Working From Home Productivity Statistics (2021), Apollo Technical (Oct. 21, 2021 4:01 PM) https://www.apollotechnical.com/working-from-home-productivity-statistics/.

[15] See Adapt or Fail, supra note 2.

[16] See id.

[17] See generally id. (discussing the implications on the law practice of working remotely due to COVID).

[18] See id.

Image Source: https://www.pexels.com/search/zoom%20call

By Michael Millstein

 

As law students around the country embark on their respective journeys in the legal world, one of the first pitstops along the way is in the world of civil procedure. Civil procedure is a course taught in the first year (“1L”) of law school which “consists of the [federal] rules by which courts conduct civil trials.”[1] One major question which frequently arises in civil procedure, is that of where you can sue someone. In order to sue someone in federal court, the rules provide that the court in which the complainant has filed must have subject matter jurisdiction, personal jurisdiction, and proper venue for the respondent.[2] The element of personal jurisdiction, has, for decades, been frequently litigated, leading to several landmark decisions.[3]

The policy decision behind personal jurisdiction is to only haul a respondent into court to such an extent that is fair to him/her.[4] In the crucial case of International Shoe, the Supreme Court held that an individual’s minimum contacts with the forum State, subsequently provided that State with personal jurisdiction over the respondent.[5] Since this holding, several court cases have expounded upon the definition of “minimum contacts” and have further refined the rule itself.[6] In addition to minimum contacts, if a respondent is either served with process in the State where suit is filed, or resides there, personal jurisdiction is appropriate.[7] Now, in the modern pandemic-era, the question arises of whether or not platforms such as Zoom may eliminate the stringencies of proving that a court does have personal jurisdiction over a respondent.[8]

Several key advantages may arise from allowing Zoom to supplement the traditional personal jurisdiction rules. One such advantage is the ability to open the court’s doors to more people by reducing both the time and monetary costs of litigation.[9] In just the past 12 months, an astounding 432 challenges of personal jurisdiction have reached the appellate level, guaranteeing a lengthier trial.[10] Providing an incentive to not challenge personal jurisdiction may assist in reducing this number over the next 12 months. Furthermore, in situations where personal jurisdiction is appropriate, the opportunity to participate via zoom may reduce travel costs for the respondent.[11] In Justice Breyer’s famous opinion in McIntyre, he opined the Appalachian potter to a corporate machine, reasoning that it is not fair to anticipate that both entities have equal opportunity to travel in order to defend themselves.[12] Furthermore, with the potential reduction in the frequency of litigation involving disputes over personal jurisdiction, this may help speed up the process of ongoing cases, which may otherwise take several years to resolve.[13]

In spite of the plethora of exciting opportunities which integrating Zoom into our legal system presents, such opportunities are nevertheless met with potential downsides. Three key questions to consider when assessing how greatly we aspire to have our legal system rely on Zoom, or any technology for that matter, are: (1) how fair a zoom trial is; (2) if it would phase out the older generations of attorneys, complainants, and respondents; and (3) if this disadvantages those who come from a less well-off socioeconomic standing. After a year of Zoom trial results to analyze, studies show that Zoom trials are linked with higher bail amounts; limited effects on the use of video evidence; and harsher outcomes for defendants/respondents in general.[14] Although Zoom increases “access and accountability,” its inability to guaranteeably do so for the elderly, and the homeless communities, coupled with its harsher outcomes, may cut against its implementation for personal jurisdiction purposes since it does not inherently promote equity.[15]

Regardless of whether or not the advantages of Zoom supplementing personal jurisdiction outweigh the potential costs, the primary issue left to analyze is whether or not one may waive one’s right to a zoom trial in order to enforce a court to require the traditional personal jurisdiction standard.[16] If so, does this really solve anything, and how should courts handle this? Though a legal standard on waiver is far down the road, as this entire dilemma is nothing more than a mere hypothetical for now, courts may choose to say that a waiver of the right to a zoom trial at any point is an irrevocable waiver.[17] In doing so, the court effectively says that if one opts to challenge whether or not the court has personal jurisdiction over oneself, that this challenge (1) acts a waiver of the right to a zoom trial, and (2) if the court rules against the challenger, this waiver may not be revoked.[18] In essence, this leaves the potential challenger with the decision to either risk paying travel costs via waiver and a challenge of personal jurisdiction, or to simply choose to consent to a zoom trial. Lately, American society has demanded changes to what many refer to as a “broken system.”[19] Whether that same crowd will soon demand the implementation of zoom to remedy the legal system poses a question to potentially be answered in the very near future.

 

[1] Cornell Law School Legal Info. Instit., Civil Proc., https://www.law.cornell.edu/wex/civil_procedure (last visited Oct. 20, 2021).

[2] See Fed. R. Civ. P. 12 (requiring that a complaint state that a court has the requisite subject matter jurisdiction, personal jurisdiction, and venue necessary in order to hear a case).

[3] See, e.g., Pennoyer v. Neff, 95 U.S. 714, 735 (1878); International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Burger King, Corp. v. Rudzewicz, 471 U.S. 462, 487 (1985).

[4] Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1019 (2021).

[5] International Shoe Co., 326 U.S. at 316.

[6] See, e.g., Id.; Pennoyer, 95 U.S. at 735; Hanson v. Denckla, 357 U.S. 235, 256 (1958).

[7] See Burger King, Corp., 471 U.S. at 487 (further refining the rule of what contacts and actions taken by a company can subject it to personal jurisdiction in the forum state); Pennoyer, 95 U.S. at 735 (holding that a state has personal jurisdiction over the citizens residing within it).

[8] William Antonelli, What is Zoom? A Comprehensive Guide to the Wildly Popular Video-Chatting Service For Computers and Smartphones, Business Insider (Nov. 18, 2020, 2:52PM), https://www.businessinsider.com/what-is-zoom-guide.

[9] Lauren Kirchner, How Fair Is Zoom Justice, The Markup (June 9, 2020, 10:00AM), https://themarkup.org/coronavirus/2020/06/09/how-fair-is-zoom-justice.

[10] See Westlaw, Cases (last visited Oct. 21, 2021), https://1.next.westlaw.com/Search/Results.html?query=personal%20jurisdiction&jurisdiction=ALLCASES&contentType=CASE&querySubmissionGuid=i0ad62aef0000017ca3be81896c444160&searchId=i0ad62aef0000017ca3be15cc8fdc3549&transitionType=ListViewType&contextData=(sc.Search) (searching “personal jurisdiction” in the search bar).

[11] See Scott McCartney, The Covid Pandemic Could Cut Business Travel By 36% — Permanently, WSJ (Dec. 1, 2020, 8:48AM), https://www.wsj.com/articles/the-covid-pandemic-could-cut-business-travel-by-36permanently-11606830490 (noting how the pandemic, and new telecommunication platforms, have intertwined to limit the frequency of business trips, and subsequently the costs of travel for those businesses).

[12] J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873, 891 (2011) (Breyer, J., concurring) (highlighting that “[w]hat might appear fair in the case of a large manufacturer which specifically seeks, or expects, an equal-sized distributor to sell its products in a distant State might seem unfair in the case of a small manufacturer (say, an Appalachian potter) who sells his products . . . to a buyer from a distant state”).

[13] See Taylor Dalton, Federal Civil Cases Are Resolved in a Year On Average, But Obtaining a Judgment Through Trial Adds an Extra Year, The Juris Lab (May 26, 2021) (highlighting that the average civil trial lasts 364 days, which allows us to infer that an intervening dispute over personal jurisdiction can prolong the outcome of a court case for well over a year).

[14] Kirchner, supra note 9.

[15] Id.

[16] See generally Restatement (Second) of Conts. § 84 (Am. L. Inst. 1979) (detailing how waivers work in contract law).

[17] Id.

[18] Id.

[19] Clark Nelly, Our Broken Justice System, Cato Institute (June 2019), https://www.cato.org/policy-report/mayjune-2019/our-broken-justice-system.

Image Source: https://www.theatlantic.com/magazine/archive/2021/05/can-justice-be-served-on-zoom/618392