Framing Online Speech Governance as an Algorithmic Accountability Issue

Volume 99

Mehtab Khan

Automated tools used in online speech governance are prone to errors on a large- scale yet widely used. Legal and policy responses have largely focused on case-by- case evaluations of these errors, instead of an examination of the development process of the tools. Moreover, information on the internet is no longer simply generated by users, but also by sophisticated language tools like ChatGPT, that are going to pose a challenge to speech governance. Yet, legal and policy measures have not responded adequately to AI tools becoming more dynamic and impactful. In order to address the challenges posed by algorithmic content governance, I argue that there is a need to frame a regulatory approach that focuses on the tools used in both content moderation and content generation contexts—which can be done by viewing this technology through an algorithmic accountability lens. I provide an overview of the various aspects of the technical and normative features of these tools that help us frame the regulation of these tools as an algorithmic accountability issue. I do this in three steps: First, I discuss the lack of sufficient attention towards AI tools in current regulatory approaches. Second, I highlight the shared features of both content moderation and content generation to offer insights about the interlinked and evolving landscape of online speech and AI Governance. Third, I situate this discussion of speech governance within a broader framework of algorithmic accountability to guide future regulatory interventions.

Full article available here.




Counterman v. Colorado: True Threats, Speech Harms, and Missed Opportunities

Volume 99

R. George Wright

Some Supreme Court cases amount, at their best, to missed opportunities. The Supreme Court’s recent case Counterman v. Colorado resolved, quite dubiously, one particular issue of mens rea. In the course of doing so, however, the Court ignored a variety of clearly presented issues of even greater significance.

Full article available here.




The Supreme Court, Constitutional Development, and Evolution Theory: A Critique

Volume 99

Charles M. Lamb & Jacob R. Neiheisel

This article spotlights how University of Chicago Professor David Strauss’s publications present the early stages of a descriptive theory of constitutional interpretation and evolution, and how his theoretical contributions might be strengthened. Specifically highlighted here are ten milestone Supreme Court rulings with the objective of determining which were “evolutionary” as opposed to “modernizing,” based on Strauss’s theoretical formulations. On various occasions these cases demonstrate how Strauss’s theory can be not only refined but broadened. The concluding section assesses Strauss’s contribution to the study of American constitutional development and how it might be revamped. There we argue that despite Strauss’s influence on the study of the Supreme Court and constitutional evolution, he relies on concepts that must be clarified and honed for future research, and he must make his theory more comprehensive. At a minimum, Strauss should extend his descriptive theory to three types of Supreme Court decisions: those that are retrogressive, revolutionary, and confirming status quo in nature. Finally, Strauss should attempt the most difficult task of all: developing a causal theory of constitutional change.

Full article available here.




Adapting Standards of Judicial Impartiality to Student Discipline in Higher Education: Pitfalls and Potential Learned from Title IX Adjudications

Volume 98

Brennan Murphy

Ongoing faith in judicial decision-making is predicated on the fairness of judicial institutions. After all, “[a] fair trial in a fair tribunal is a basic requirement of due process.” Any legal system that respects the rule of law must ensure impartiality in the adjudication of disputes—not just in the courts, but in all forms of adjudication. Therefore, adjudications of student discipline cases in higher education (at least at public institutions) must abide by the judicial ethic of impartiality as a matter of due process.Students in similar situations must be treated equally to avoid injustice, without regard to adjudicators’ biases or conflicts of interest, because school disciplinary systems will not work if they seem unjust to students.

But is the impartiality required in university discipline cases equivalent to the standards of impartiality set forth for judges adjudicating in courtrooms? This Note argues that impartiality in student discipline should distinguish itself in part from judicial impartiality, keeping the broad strokes (a requirement of impartial decision-making and a mechanism to enforce it) but adapting them to the educational context. In Part I, an overview of impartiality as applied to formal judges denotes how partial judges can be removed from decision-making in cases where conflicts of interest or biases actually interfere—or appear to interfere—with judicial judgment. Part II then describes the educational environment of student discipline at institutions of higher education, including the concerns for impartiality unique to school discipline. Part III offers a deep look into Title IX hearings adjudicating and addressing student-to-student sexual misconduct. The administrative regulations around impartiality in Title IX decision-making—their vacillation between specificity and silence—provide insights into areas of improvement for impartiality in university student discipline at large. From these insights, this Note articulates several recommendations for practice in Part IV.

Full article available here.





Three-Judge District Courts, Direct Appeals, and Reforming the Supreme Court’s Shadow Docket

Volume 98

Michael E. Solimine

The “shadow docket” is the term recently given to a long-standing practice of the U.S. Supreme Court, in granting or denying requests for stays of lower court decisions, often on a hurried basis with rudimentary briefing and no oral argument, and with little if any explanation by the Court or individual Justices. Recently, the practice has received unusual attention inside and outside the legal community, because of its seemingly increased use by the Court in high-profile cases, with the emergency orders often sought by the federal government or state officials. Scholars have advanced various reforms to ameliorate the perceived problems of the shadow docket. One suggestion is to require suits against federal statutes and policies to be litigated before a specially convened three-judge district court, perhaps in the District of Columbia, with a direct appeal to the court. Supporters argue that this process would result in more consistent decision-making by the Court and lower courts.

This Article critically examines a suggested reform. As its supporters acknowledge, the reform would largely replicate the procedure Congress established from 1937 to 1976 for challenges to the constitutionality of federal statutes. Congress abolished the special procedure in 1976, given opposition from the federal judiciary and others, in part due to it being perceived as unnecessary, and burdening the Court with mandatory appeals. The Article first evaluates the recent suggestion, considering the prior experience, an evaluation that includes an empirical analysis of Supreme Court decisions under the earlier process. It then considers proposals to establish exclusive jurisdiction in the federal courts in the District of Columbia, which would reduce forum shopping but deprive the court of the benefits of percolation of multiple suits. The Article concludes that the suggested reform could ameliorate some of the problems of the shadow docket, but should be undertaken with an appreciation of the decidedly mixed past experience with similar institutional arrangements.

Full article available here.




The Proactive Model: How to Better Protect the Right to Special Education for Incarcerated Youth

Volume 98

John Bignotti

The Individuals with Disabilities Education Act (IDEA) guarantees access to a specialized, appropriate public education for youth with disabilities in the United States. While progress has been made and this right to education extends to incarcerated youth as well as those outside the juvenile justice system, there is nonetheless a fundamental limitation on how this federal requirement is imposed in the carceral context: it is enforced through primarily reactive mechanisms. Lawsuits, state compliance regimes, and consent decrees can hold states and juvenile facilities accountable after systemic failures to comply with the IDEA; however, the inherent inconsistency and slow pace of this system call for a paradigm shift toward a more active federal government role in enforcing the right to special education in juvenile facilities. This paper will first explore the way scientific understandings of disability and the social context of disability inform this need for change, then provide a walkthrough of the current state of how the law has addressed this issue, and lastly identify how a more aggressive monitoring and compliance regime might improve access to education for youth with disabilities who are caught in the juvenile justice system

Full article available here.




Situating Structural Challenges to Agency Authority Within the Framework of the Finality Principle

Volume 98

By Harold J. Krent

In the upcoming term, the Supreme Court will hear argument in Cochran v. SEC, in which the en banc Fifth Circuit departed from its sister circuits to hold that federal courts may entertain constitutional challenges to administrative agency structure even when administrative proceedings are pending. On the one hand, the cognate doctrines of finality and implied preclusion would lead courts to stay their hands and await the outcome of the administrative proceeding to determine whether their intervention is needed. On the other, forcing the litigant to raise the structural claim before an administrative entity that has no power to declare itself unconstitutional seems futile and a waste of the litigant’s resources.

In this Essay, I argue that Cochran was wrongly decided, critiquing that court’s reasoning as well as academic support for its stance. To stake out that position, I compare judicial review of challenges to agency legitimacy to that of appellate review over analogous challenges in federal district court to the authority of non-Article III judicial officials. Even when litigants challenge the propriety of federal district court orders requiring arbitration or appointment of masters and magistrates, no appeal as of right is allowed. Congress, rather, has directed that all claims be raised together on appeal after a final judgment has been entered. I conclude that the concerns for finality and efficiency that underlie the final judgment rule strongly militate holding off judicial review until the administrative agency concludes its proceeding.

Full article available here:




Can Social Science Teach Congress New Tricks?: Addressing the Need for Educational Support Dogs in Classrooms

Volume 97

By Elaina H. Wilson

In the United States, children with disabilities are afforded protections in three federal statutes: the Individuals with Disabilities Education Act; Section 504 of the Rehabilitation Act of 1973; and the Americans with Disabilities Act of 1990. However, these laws fail to provide for educational support dogs in public schools, despite the common and successful use of educational support dogs in other countries. The success of educational support dogs abroad is not suprising, as recent waves of social science research make clear the benefits of dogs in schools, from increased productivity within the classroom to improved morale within the school community at large. Additionally, this research suggests that dogs in educational settings can have the biggest impact on children with disabilities. Still, these U.S. laws generally bar children with disabilities from accessing educational support dogs in public schools.

To address this problem, this Note focuses on attention deficit hyperactivity disorder, as it is one of the most common neurodevelopmental disorders in children, as well as the Individuals with Disabilities Education Act, as it allows for the most flexibility and opportunity for collaboration, compared to the other two laws affording protections to children with disabilities. Specifically, this Note urges Congress to consider recent social science understandings and amend the Individuals with Disabilities Education Act to add a provision mirroring the Companion Animals Act 1998 of New South Wales, Australia, which allows for educational support dogs in classrooms when and where school officials see fit. This provision would provide children, particularly those with ADHD and other disabilities, better opportunity to access educational support dogs in U.S. public schools and, thus, experience the multitude of benefits identified by the studies highlighted in this Note.

Full article available here:




What Will the “Foreseeable Future” Bring for Climate-Imperiled Species?

Volume 97

By Olivia Bauer

The Endangered Species Act (ESA) is the strongest source of federal protection for species that are at risk of extinction, and the ESA is becoming increasingly important as climate change threatens species and their habitats more than ever. In 2019, the Trump Administration amended the ESA to provide clarity and predictability when making decisions to list a species as threatened or endangered under the ESA. The Administration defined “foreseeable future” in a way that starkly limits how far into the future the listing agencies may look when assessing risks to species. Prior to the 2019 definition of “foreseeable future,” the federal agencies in charge of deciding to list species under the ESA faced risk uncertainty when assessing the likelihood and magnitude of threats to species and their habitats from climate change predominantly because of scientific uncertainty and difficulty predicting mitigation efforts.

This Note argues that instead of the 2019 amendments providing the intended clarity and consistency, the “foreseeable future” definition instead weakens the substantive standards used in the ESA listing process, limits federal agencies’ ability to consider climate change when making decisions on whether to provide species with ESA protections, and ultimately will push climate-imperiled species further toward the risk of extinction. To provide more effective guidance to the agencies making listing decisions under the ESA, revised rulemaking should require the agencies to explain how they deal with uncertainties and species’ risk of endangerment and to apply standards consistently.

Full article available here:




Mandating Board Diversity

Volume 97

By Sung Eun (“Summer”) Kim

California’s Assembly Bill 979 (AB-979) requires companies that are based in California to have a specified minimum number of directors from underrepresented communities. A “director from an underrepresented community” is defined as an individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identifies as gay, lesbian, bisexual, or transgender. AB-979 received much attention for being the first law to mandate greater diversity on corporate boards in terms of race and sexual orientation. Senate Bill 826 (SB-826), which was introduced two years prior, was the first U.S. legislative effort to mandate greater gender diversity on corporate boards. AB-979 and SB-826 have received both intense praise and vehement criticism. The debate over the California board diversity bills raises fundamental questions about the proper role of the state in using its power to regulate corporations to advance public values. In this Article, I summarize and respond to the various legal challenges that have been raised against California’s board diversity bills and argue that the precedent-setting efforts of the California legislature are consistent with the original design of corporate law in the United States, which is built on a model of federalism and state competition.

Full article available here:




Bostock and Contact Theory: How Will a Single U.S. Supreme Court Decision Reduce Prejudice Against LGBTQ People?

Volume 97

By Mantas Grigorovicius

In 1954, Gordon Allport, one of the nation’s leading social psychologists, laid out a hypothesis explaining how prejudice could be reduced by intergroup contact. Decades later, his hypothesis became a theory with thousands of research hours behind it. Under contact theory, one of the factors that facilitates a reduction in prejudice between two groups is support of authorities or law. This Comment focuses on Bostock v. Clayton County, a recent Supreme Court decision holding that Title VII prohibits discrimination based on sexual orientation. Allport suggested that anti-discrimination laws help to “lead and guide the folkways,” and this Comment explores how Bostock could do just that in the context of prejudice. Bostock will allow for more contact with LGBTQ people and, by sending a message that discrimination is not condoned, Bostock can eventually change how society views LGBTQ people. Under contact theory, Bostock’s antidiscrimination protections will establish antiprejudicial societal norms and, as a result, religious groups that show animosity toward nontraditional couples may eventually begin to accept them.

Full comment available here:




Acquisition Entrepreneurship: One Solution to the Looming Business Succession Crisis

Volume 97

By David Nows

In the coming years, there will be a growing supply of small businesses held by aging owners that need to execute a succession plan, transitioning the business to a new owner that can carry the business forward in future years. Unfortunately, very few of these Baby Boomer-led businesses have a plan for who will take over for the primary business owner when the time comes, creating an emerging leadership crisis. However, there is an underutilized acquisition strategy that allows for a motivated and skilled entrepreneur to team with a small group of investors to search for (and ultimately to purchase) an existing small business. This paper highlights these transactions, often referred to as acquisition entrepreneurship through search funds, as a viable way to connect retirement-age business owners with an entrepreneur ready and willing to take over the business. Additionally, this paper endorses two strategies for educating entrepreneurs and investor groups on acquisition entrepreneurship, with the goal of making these complex transactions more accessible and more common.

Full article available here:




First Amendment Freedoms Diluted: The Impact of Disclosure Requirements on Nonprofit Charities

Volume 96.

By Bailie Mittman

Since the birth of the Bill of Rights in 1791, the freedoms protected by the First Amendment have been cherished by all members of this nation. The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” Over time, courts have acknowledged that the freedom to speak freely means very little if the guarantee is not protected by an additional right: the freedom to associate. Thus, the freedom of expressive association stands as an essential component of an individual’s free speech rights and state infringement on associative rights has the power of potentially chilling speech, especially from an organizational standpoint.
Throughout the relatively short history of the right to associate, the courts traditionally applied strict scrutiny to governmental attempts to intervene in organizations, whether such intervention be via imposing penalties on disfavored groups, requiring disclosure of membership groups, or attempting to interfere with a group’s internal organization or affairs. However, in two recent cases, Citizens United v. Schneiderman and Americans for Prosperity Foundation v. Becerra, two different appellate courts found the freedom of expressive association of either organization was not infringed upon when applying intermediate, exacting scrutiny to state laws mandating the disclosure of nonprofit organizations’ annual Form 990s. These forms, filed yearly with the IRS to maintain tax-exempt status, include a Schedule B that contains a list of the names and addresses of all significant donors to the organization. The plaintiffs in both cases argued the forced disclosure of these donors would chill the organization’s freedom of speech rights by making it more difficult to secure donations from individuals who feared being publicly associated with organizations promoting various minority viewpoints. Ultimately, both appellate courts found these arguments to be unpersuasive and upheld the state laws.

Part I of this Note briefly discusses the history and evolution of the freedom of association before articulating what the doctrine looks like today. Part II summarizes the decisions in Citizens United and Americans for Prosperity Foundation while analyzing the reasoning used by both courts in reaching their decisions. Finally, Part III weighs the merits of this decision by considering the arguments raised by both sides both during and in the wake of the decisions. This Note concludes that the appellate courts veered away from traditional preferences of protecting First Amendment rights by upholding a state-sanctioned, non-political disclosure requirement for non-profit charities. Both appellate courts reached this conclusion by applying a less rigorous scrutiny test than that normally applied to statutes with the potential of affecting First Amendment freedoms.

Full Article Available here:




A Clumsy Couple: The Problem of Applying Model Rule 1.7 in Transactional Settings

Volume 96

By: Katelyn K. Leveque

The American Bar Association’s Model Rules of Professional Conduct (“Model Rules”) have long addressed conflicts of interest, with fluctuating degrees of stringency.1 For as long as the rules have been in place, legal scholars have grappled with how lawyers can work within the confines of the rules to serve their clients best, as well as how the rules might better align with what clients seek and expect from their legal representation. In their current form, the Model Rules address conflicts of interest in Rule 1.7. However, both this rule and the Model Rules more generally are not one size fits all. The Model Rules were written largely with litigators in mind, and thus applying them to transactional matters is often awkward and tenuous.2 In this Note, I will argue that Model Rule 1.7 should be amended to account for the differences in the ways that litigators and transactional attorneys should and do conceptualize conflicts of interest in their practices. Part I outlines the history of Rule 1.7 and its predecessors, and walks through Rule 1.7 and the comments as they exist today. Part II details the reasons that legal scholars argue Rule 1.7 is a valuable and necessary rule. Part III describes the incongruities between Rule 1.7’s parameters and the realities of transactional lawyering. Part IV discusses solutions that have been put forward to make up for the drawbacks of Rule 1.7 in its current iteration. Finally, Part V offers my proposed solution to the problem of applying Rule 1.7 to transactional matters: amend the rule and create subparts that pertain specifically to transactional lawyers, who have less need for a ban on conflicts of interest.

Full Article Available Here:




Tort Immunity in the Pandemic

Volume 96

Betsy J. Grey & Samantha Orwoll

The Covid-19 pandemic set off a public health emergency that quickly brought doctors and other health care providers to the front line, while shuttering businesses throughout the United States. In response to the emergency, the federal and state governments rapidly created broad protections from tort liability for health care providers. To encourage businesses to reopen, some states have also provided liability protection for businesses from personal injury suits brought by patrons and employees. Congress is considering similar protections for businesses as it contemplates further aid packages. Some industries, like nursing homes and universities, are lobbying for specific immunity. This Essay overviews some of these liability shields, examines their relative necessity and value, and anticipates some of the issues that will inevitably arise as the provisions are implemented.

Full article available here:




Unsafe at any Campus: Don’t Let Colleges Become the Next Cruise Ships, Nursing Homes, and Food Processing Plants

Volume 96

Peter H. Huang & Debra S. Austin

The decision to educate our students via in-person or online learning environments while COVID-19 is unrestrained is a false choice, when the clear path to achieve our chief objective safely, the education of our students, can be done online. Our decision-making should be guided by the overriding principle that people matter more than money. We recognize that lost tuition revenue if students delay or defer education is an institutional concern, but we posit that many students and parents would prefer a safer online alternative to riskier in-person options, especially as we get closer to fall, and American death tolls rise. This Article argues the extra stress of trying to maintain safety from infection with a return to campus will make teaching and learning less effective. While high density classrooms promote virus transmission and potentially super-spreader events, we can take the lessons we learned during the spring and provide courses without the stressors of spreading the virus. We argue the socially responsible decision is to deliver compassionate, healthy, and first-rate online pedagogy, and we offer a vision of how to move forward into this brave new world.

Full article available here:




An Appellate Solution to Nationwide Injunctions

Volume 96

Sam Heavenrich

District courts have issued an unprecedented number of nationwide injunctions during the Obama and Trump administrations, provoking criticism from the Supreme Court. This Article proposes a change to the Federal Rules of Civil Procedure that addresses the Justices’ concerns without taking the drastic step of eliminating nationwide injunctions entirely. Specifically, this Article recommends amending Rule 65 to allow only the appellate courts to issue injunctive relief that extends beyond the plaintiffs in cases challenging a federal law or policy. In addition to the proposed Rule change, this Article offers a categorization framework for existing proposals addressing nationwide injunctions, classifying them as “Prohibitory Rules,” “Inhibitory Standards,” or “Inhibitory Rules.” The proposal itself takes the form of an Inhibitory Rule.

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Ratification of the Equal Rights Amendment: Lessons From Special Elections to The House of Representatives in 1837

Volume 95

John Vlahoplus

In 1837 the House of Representatives considered a governor’s attempt to include a limitation in a writ issued to fill a vacancy in representation pursuant to Article I, Section 2 of the Constitution. The Representatives agreed almost unanimously that the limitation was unconstitutional and should be disregarded as mere surplusage rather than invalidating the writ and the election.

This Article suggests that the similar Article V gives Congress only the power to propose amendments, without any limitation, and States the power to ratify amendments or not, without any power to rescind. Consequently, the time limit that Congress purported to impose on ratification of the Equal Rights Amendment is unconstitutional surplusage, and state rescissions are ineffective. Virginia’s ratification on January 15, 2020 pushed the Amendment past the three-quarters threshold, making it a valid part of the Constitution. The Article also considers lessons from the subsequent 1837 general elections and suggests that the Supreme Court — rather than Congress — should and likely will ultimately adjudicate the validity of the Amendment’s ratification.

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Upskirting, BitCoin, and Crime, Oh My: Judicial Resistance to Applying Old Laws to New Crimes – What is a Legislature to Do?

Volume 95

Michael Whiteman

As technology continues to advance at a break-neck speed, legislatures often find themselves scrambling to write laws to keep up with these advances. Prosecutors are frequently faced with the prospect of charging a defendant with a crime based on an existing law that does not quite fit the circumstances of the defendant’s actions. Judges, cognizant of the fact that legislatures, and not the judiciary, have the primary responsibility for creating crimes, have pushed back. Judges routinely refuse to convict a defendant if the statute does not fairly criminalize the defendant’s actions. To determine if a defendant’s actions fit within a criminal statute, judges look to the plain meaning of the statute, often relying on dictionaries and other interpretive tools, because legislative histories are scant at the state level, in an attempt to discern if the law covers the defendant’s actions. If the plain meaning will not encompass the “new” crime, judges often send a message to the legislature: by refusing to convict, that message is that it is time to draft a new law. This Article through an analysis of some recent cases, reviews the current state of affairs, looking at how the judiciary attempts to address “new” crimes when defendants are charged under “old” laws. It is hoped that this Article will encourage legislatures to act to curb “new tech” criminal behavior without relying on the courts to try and fit new crimes into old laws. 

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The Extremes of Rap on Trial: An Analysis of the Movement to Ban Rap Lyrics as Evidence

Volume 95

Michael Conklin

This Article is a review of Rap on Trial: Race, Lyrics, and Guilt in America. The book largely focuses on the dangers of allowing rap lyrics to be presented as evidence in criminal trials. The authors posit that the fictitious and hyperbolic nature of rap lyrics are misrepresented by prosecutors as autobiographical confessions that document illegal activity and violent character traits of defendants. The authors compare rap to other musical genres and conclude that racism is the underlying cause for why the genres are treated differently in court. The authors also advocate for evidence nullification and argue for a complete ban on all rap-related evidence at trial. This Article assesses both the strengths and weaknesses of the evidence presented to support these claims. Furthermore, this Article discusses pragmatic issues such as how the author’s advocacy for their more extreme proposals may be counterproductive to enacting their more reasonable proposals.

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Saving Money on Health Insurance Just Got a lot Easier . . . Or Did It?: The Preserving Employee Wellness Programs Act and its Impact on the Future of Employee Health

Volume 95

Zachary Maciejewski

This Note addresses the growing use of employer-sponsored wellness programs in the American workplace and the concomitant harms and risks these programs impose on employee privacy and insurance costs. Specifically, this Note analyzes the Preserving Employee Wellness Programs Act (PEWPA)—a proposed law that would allow employers to require employees to disclose genetic information to qualify for an employer-sponsored wellness program (and the program’s associated insurance premium benefits). This Note ultimately argues that employees and employee advocacy groups must work to thwart PEWPA to preserve employee privacy in the face of mounting corporate pressure to alter the structure of employer-sponsored health insurance.

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Rethinking the Highway: Integrating Delivery Drones into Airspace Above Highways

Volume 95

Daniel Thompson

It is no secret that drones are occupying the skies, but where are they supposed to fly? Drones will need to share airspace with other aircraft, and, eventually, other drones. Considering that drones come in different shapes and sizes and serve different functions, businesses and lawmakers should coordinate to propose creative solutions. This Note proposes one such solution: municipal, state, and federal governments should lease the airspace above roads and highways to develop an infrastructure capable of supporting the unique characteristics of delivery drones.

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A Coffee Break for Bitcoin

Volume 95

Margaret Ryznar

For many, the appeal of bitcoin is in its detachment from government regulation. However, the Coffee bonding theory, which initially arose in the context of foreign stocks, suggests certain benefits of regulation for bitcoin, including increased legitimacy. By invoking the Coffee bonding theory, this Article offers another perspective on the regulation of bitcoin.

Full article available here.




LEAD Us Not into Temptation: A Response to Barbara Fedders’s “Opioid Policing”

Volume 94

Anna Roberts

In “Opioid Policing,”* Barbara Fedders contributes to the law review literature the first joint scholarly analysis of two drug policing innovations: Seattle’s Law Enforcement Assisted Diversion (LEAD) program and the Angel Initiative, which originated in Gloucester, Massachusetts. Even while welcoming the innovation and inspiration of these programs, she remains clear-eyed about the need to scrutinize their potential downsides. Her work is crucially timed. While still just a few years old, LEAD has been replicated many times and appears likely to be replicated still further—and to be written about much more. Inspired by Fedders’s call for a balanced take, this Response examines a variety of sources that have described the LEAD program, investigating what they tell us about the ability of commentators to examine (and contribute to) the list of the program’s costs and benefits. Part I examines the way in which the positive potential of this program is described, and possible tendencies to paint a picture that may be unnecessarily rosy. Part II turns to the other side of the equation and highlights potential risks that commentators may downplay, or even compound.

Full article available here.

*Opioid Policing, Barbara Fedders, 94 Ind. L. J. 389 (2019)





Controlling Biogenic Volatile Organic Compounds for Air Quality

Volume 94

Brian Sawers

This Article tells a story that is true but seems completely wrong: Trees can make air pollution worse. Smog and ground-level ozone require two chemical ingredients to form: nitrous oxides (NOx) and volatile organic compounds (VOCs). On a warm, sunny day, these two precursors combine to form smog and ground-level ozone, a pollutant. While NOx are pollutants that are largely human-created, VOCs can originate with plants. In fact, emissions of just one type of VOC from trees exceed all human-caused emissions.

This Article presents new research on the impact of plants, especially trees, on air quality. The science is complicated and evolving, but some conclusions are possible. Different species emit greater or lesser amounts of VOCs, and emissions vary through the year. Some plant species also consume atmospheric VOCs, enough to outweigh their own emissions and thus remove VOCs from the air on net. Trees generally have an outsize impact as compared with other plants because trees are large plants and therefore large emitters. Thus, the mix of species in a given area has an impact on air quality. Building on new science, this Article argues that choosing the right trees can improve air quality. Governments should encourage the planting of trees that clean the air, while discouraging or restricting the planting of trees that contribute to air pollution. Many cities are already encouraging tree planting for a variety of environmental and other benefits, but planting the wrong trees will worsen air quality.

Full article available here.

 




Legislatively Overturning Fort Stewart Schools: The Trump Administration’s Assault on Federal Employee Collective Bargaining
VOLUME 94

Richard J. Hirn

In his Fiscal Year 2019 Budget Submission President Trump noted that about 60 percent of Federal employees belong to a union and lamented that dealing with Federal employee unions ostensibly “consume[s] considerable management time and taxpayer resources, and may negatively impact efficiency, effectiveness, cost of operations, and employee accountability and performance.” Although he acknowledged that Federal employee unions can negotiate over fewer matters than can unions in the private sector, he nonetheless claimed that collective bargaining contracts can negatively impact agency performance, workplace productivity, and employee satisfaction. The President told Congress that “[a]gency managers will be encouraged to restore management prerogatives that have been ceded to Federal labor unions,” and that “[t]he Administration sees an opportunity for progress on this front and intends to overhaul labor-management relations.” The Administration took such an opportunity this past April when it submitted proposed legislation to the House and Senate Armed Services Committees that would revamp the statutes that authorize the Department of Defense (DOD) to operate schools on bases in the United States and overseas for military dependents. In 1990, the Supreme Court unanimously ruled in Fort Stewart Schools v. Federal Labor Relations Authority that teachers and other educational personnel in DOD’s domestic dependents schools could collectively bargain over wages because, unlike the majority of Federal employees, their salaries are not set by statute. DOD’s new legislative proposal contains a provision that would statutorily overturn the Fort Stewart Schools decision by granting the Secretary of Defense sole and exclusive discretion to set compensation rates in the DOD dependents schools. This article argues that those bargaining rights are at risk if the Administration succeeds in eliminating the right of teachers in DOD schools to bargain over pay.

Full article available here.




“You Have the Data” . . . The Writ of Habeas Data and Other Data Protection Rights: Is the United States Falling Behind?
VOLUME 94

Sarah L. Lode

Amidst a global trend of protecting individuals from unnecessary invasions of privacy and in a world culture where nations are finding more innate rights of privacy than ever before, is the United States trailing in the protection of its citizens’ personal data? When looking at changing legislation and constitutions across the globe, it is hard not conclude that the United States could learn a thing or two in the way of personal data protection: specifically, how to better protect personal medical records, treatment data, and other health-related information. American citizens are given seemingly little or no control over the use, dissemination, and storage of their personal data—this is especially apparent when United States’ legal footwork is compared with several other parts of the world. Although the United States enacted the Health Insurance Portability and Accountability Act (HIPAA) (which was passed in 1996 and is rarely updated) to provide some protection of medical data, along with several other topical data protection statutes and acts, the United States’ ad hoc approach does little to protect citizens’ personal data, which is becoming the norm in other parts of the world. Internationally, citizens are provided, and sometimes constitutionally guaranteed, avenues to challenge the use, collection, and storage of their personal data by governmental and private agencies alike. Other world citizens have access to a variety of rights and writs that allow an individual to control the use, distribution, and storage of his personal information. These rights include the writ of habeas data, the right to be forgotten, the right to erasure, the right to stop processing, and the right to access. With the goal of further understanding the changing international climate regarding personal data protection, this Note will not only discuss the past and current laws in several countries and regions—specifically Latin American countries and the European Union—but will attempt to harmonize these changing international data protection norms in a way that could allow the United States to build its own comprehensive data protection scheme. While the international trend towards more personal data protection covers a wide variety of personal data, this Note will focus predominately on the protection of personal medical records as a case study and starting point from which to propose a more comprehensive solution for reforming United States legislation.

Full article available here.




Sticks, Stones, and So-Called Judges: Why the Era of Trump Necessitates Revisiting Presidential Influence on the Courts
VOLUME 94

Quinn W. Crowley

In the United States, there is a long history of Presidents and other elected officials clashing with the courts. These clashes have often been about complex and significant issues, including the role of judicial review in American jurisprudence, slavery, New Deal legislation, and the treatment of Native Americans. Presidents choose to attack the judiciary for a number of reasons, but it is not entirely clear where the line should be drawn between legitimate acts of presidential dissent and acts of active hostility meant to undermine the legitimacy of the judiciary. Moreover, what is the consequence of a judiciary whose legitimacy is weakened over time? While the legislative branch is able to constitutionally alter the courts, primarily via jurisdiction stripping and judicial impeachment, the executive is much more limited in terms of legitimately checking the judicial branch. This Note concludes that, while President Trump’s behavior regarding the judiciary has been the subject of intense media scrutiny during his first two years in office, it is important to place his comments and actions in a historical context by looking at the examples set by past Presidents. Through this frame of analysis, this Note concludes that, although President Trump’s rhetorical attacks on the independence of the judiciary—particularly in the criminal context and in targeting individual judges—have been numerous and unprecedented, President Trump is also quietly shaping the makeup of the judiciary in a way that could become even more drastic if his administration embraces a modern Court-packing plan or continues to make judicial appointments at staggering rates.

Full article available here.




Sites of Storytelling: Supreme Court Confirmation Hearings
VOLUME 94

Patrick Barry

Supreme Court confirmation hearings have an interesting biographical feature: before nominees even say a word, many words are said about them. This feature—which has been on prominent display in the confirmation hearings of Judge Brett Kavanaugh—is a product of how each senator on the confirmation committee is allowed to make an opening statement. Some of these statements are “lavish in their praise,” some are “lavish in their denunciations,” and some are “lavish in their equivocations.” The result is a disorienting kind of biography by committee, one which produces not one all-encompassing narrative—with tensions reconciled, discrepancies explained, and the presentation of a coherent, if complex, portrait of the nominee—but rather several competing biographies, many of which directly war with each other. This experience has repeated itself in virtually every Supreme Court confirmation hearing since confirmation hearings became a regular part of the nomination process in 1955. There is a lot to regret about this. Partisan bickering doesn’t need any additional forums nor is the country really at a loss for grandstanding. At the same time, however, the hearings do offer a rare opportunity to study how this very public stage serves as an important site for storytelling about America’s highest court, about the people we deem fit to sit there, and about justice more generally.

Full article available here.




Evading Constitutional Challenge: DAPA’s Implications for Future Exercises of Executive Enforcement Discretion
VOLUME 93

Lucy Chauvin

This Note focuses on how President Trump and future presidents generally can achieve deferred-action-related goals without transgressing the boundaries of permissible enforcement discretion. Part I discusses United States v. Texas and addresses the specific challenge brought to President Obama’s immigration policy as well as scholarly arguments regarding DAPA’s constitutionality. Part II identifies the constitutional source of authority for enforcement discretion and explores interplay between the executive’s somewhat conflicting duties under the Take Care Clause. Part III looks at the development of enforcement discretion over time and specifically within the context of immigration law. Part IV focuses on the historically limited role of the judiciary in this area of the law. Lastly, Part V addresses how President Trump can move forward with implementing his own immigration policy without running into the same constitutional roadblocks that his predecessor faced.

Full article available here.