JOEL REIDENBERG, Fordham University
Email: JREIDENBERG@LAW.FORDHAM.EDU
JAMELA DEBELAK, affiliation not provided to SSRN
Email: debelak@law.fordham.edu
ADAM PAUL GROSS, affiliation not provided to SSRN
Email: adam.gross@ngc.com
LEE A. MAYBERRY, affiliation not provided to SSRN
Email: leemayberry@gmail.com
JUDITH SIMMS, affiliation not provided to SSRN
Email: simms@law.fordham.edu
ELIZABETH WOODARD, affiliation not provided to SSRN
Email: woodarde@gmail.com

Following the No Child Left Behind mandate to improve school quality, there has been a growing trend among state departments of education to establish statewide longitudinal databases of personally identifiable information for all K-12 children within a state in order to track progress and change over time. This trend is accompanied by a movement to create uniform data collection systems so that each state’s student data systems are interoperable with one another. This study examines the privacy concerns implicated by these trends. The study reports on the results of a survey of all fifty states and finds that state educational databases across the country ignore key privacy protections for the nation's K-12 children. The study finds that large amounts of personally identifiable data and sensitive personal information about children are stored by the state departments of education in electronic warehouses or for the states by third party vendors. These data warehouses typically lack adequate privacy protections, such as clear access and use restrictions and data retention policies, are often not compliant with the Family Educational Rights and Privacy Act, and leave K-12 children unprotected from data misuse, improper data release, and data breaches. The study provides recommendations for best practices and legislative reform to address these privacy problems.

RUTHANN ROBSON, City University of New York - CUNY School of Law
Email: robson@mail.law.cuny.edu

In 1980, feminist and lesbian theorist Adrienne Rich published her now-classic essay “Compulsory Heterosexuality and Lesbian Existence� in which she argued against the universalization and naturalization of women’s heterosexuality. Rich posited that heterosexuality needed to be “recognized and studied as a political institution-even, or especially, by those individuals who feel they are, in their personal experience, the precursors of new social relation.� Rich challenged feminists to “take the step of questioning heterosexuality as a ‘preference’ or ‘choice’ for women,� contending that heterosexuality “may not be a ‘preference’ at all but something that has had to be imposed, managed, organized, propagandized, and maintained by force.� While Rich’s essay was not unproblematic, especially with regard to postulating a “lesbian continuum� of resistance to heterosexuality, compulsory heterosexuality has become a core concept in feminist and queer theorizing. In Rich’s original essay, compulsory heterosexuality and marriage were often conflated, but more recent legal developments regarding same-sex marriage raise the possibilities of decoupling heterosexuality and marriage. Indeed, some theorists argue that same-sex marriage has the potential to eradicate compulsory heterosexuality.

However, even assuming that same-sex marriage can undermine compulsory heterosexuality, this should not immunize marriage itself from interrogation. Marriage, as much as-if not more than-heterosexuality, is a political institution. In this chapter, I appraise a variety of forces that impose, manage, organize, propagandize and forcefully maintain the political institution of marriage. The first section considers how state-sanctioned economic arrangements advantage married persons over unmarried persons, thus making the choice of marriage the economically advantageous choice in a capitalist economy. The next section focuses on the gendered and class dimensions of the state’s support of marriage, especially as it affects women in poverty. In the third section, I examine the way in which the law tolerates discrimination against the unmarried, while privileging those who are married. Finally, the last section addresses the forces that promote marriage, again especially for women: Section four focuses on the legal forces, both direct and indirect, while section five considers the social realm. The chapter concludes that there is a regime of compulsory matrimony and that it is as least as problematical as a regime of compulsory heterosexuality.

EMILY BARKER, University of California Hastings, College of the Law
Email: barkerem@uchastings.edu

Congress enacted the Adam Walsh Child Protection and Safety Act of 2006 ("the Adam Walsh Act") with the aim of "protect[ing] children from sexual exploitation and violent crime." Among other measures, the Act creates a National Sex Offender Registry, establishes a post-conviction civil commitment scheme, increases punishments for a variety of federal crimes against children, and strengthens existing child pornography prohibitions. The scope of this note is limited to an analysis of the commitment portion of the Act ("Commitment Provision"). This provision authorizes the federal government to civilly commit, in a federal facility, any "sexually dangerous" person "in the custody" of the Bureau of Prisons - even after that person has completed his entire prison sentence.

Recently, the Supreme Court granted certiorari on question of whether or not enactment of the Commitment Provision was within Congress‘s authority. This note will show that Congress lacked the authority to enact the Commitment Provision under either its enumerated or incontestable federal powers.

The discussion will begin with an overview of the relevant Supreme Court precedents bearing on a constitutional determination of this kind. This note will show that a proper reading of these precedents demonstrates that the clause upon which the federal government most often defends its power to regulate this subject, the Commerce Clause, is wholly inapplicable to an act like the Adam Walsh Act - legislation aimed at criminal law enforcement where States historically have been sovereign.

Next will be an evaluation of the current split between the Court of Appeals for the Fourth Circuit (“Fourth Circuit�) and the Court of Appeals for the Eighth Circuit (“Eighth Circuit�). This note will show that only the Fourth Circuit, which held the Commitment Provision beyond congressional authority, performed an extensive analysis of the relevant Supreme Court precedents in reaching its holding. The Eighth Circuit, on the other hand, relied only on its own, distinguishable precedents. Thus the only Circuit court to analyze the constitutionality of the Commitment Provision under current Supreme Court jurisprudence has found it to be unconstitutional.

This note will show further that the Commitment Provision does not fit readily into the specific schemes where federal civil commitment has be found constitutional - namely in situations where it is used to prevent and prosecute federal crimes.

Finally, this note will show that the Commitment Provision does not satisfy the due process rationales for which the Supreme Court has found state-authorized civil commitment constitutional. The structure of the Commitment Provision neither comports with the classic rationale for lower proof burdens in state civil commitment schemes, nor does it provide for a probable cause hearing within a reasonable amount of time and the general practice is to keep prisoners locked for months beyond their release dates.