Showing papers in "William and Mary Bill of Rights Journal in 2013"

Private Standards Organizations and Public Law

Abstract: Legal information institutes ofthe world, meeting in Montreal, declare that:* Public legal information from all countries and international institutions is part of the common heritage of humanity. Maximising access to this information promotes justice and the rule of law;* Public legal information is digital common property and should be accessible to all on a non-profit basis and free of charge;* Organizations such as legal information institutes have the right to publish public legal information and the government bodies that create or control that information should provide access to it so that it can be published by other parties.We hear of tyrants, and those cruel ones: but, whatever we may have felt, we have never heard of any tyrant in such sort cruel, as to punish men for disobedience to laws or orders which he had kept them from the knowledge of.ABSTRACTSimplified, universal access to law is one of the important transformations worked by the digital age. With the replacement of physical by digital copies, citizens ordinarily need travel only to the nearest computer to find and read the texts that bind them. Lagging behind this development, however, has been computer access to standards developed by private standards development organizations, often under the umbrella of the American National Standards Institute (ANSI), and then converted by agency actions incorporating them by reference into legal obligations. To discover what colors the Occupational Safety and Health Administration (OSHA) requires for use in work-place caution signs, one must purchase from ANSI the standard OSHA has referenced in its regulations, at the price ANSI chooses to charge for it.The regulations governing incorporation by reference as a federal matter have not been revised since 1982, and therefore do not address the changes the digital age has brought about in what it means for incorporated matter to be "reasonably available," as 5 U.S.C. § 552(a)(1) requires. This Article seeks to bridge that gap, suggesting a variety of approaches that might bring the use of incorporation by reference into conformity with modem rulemaking practices and respect the general proposition that documents stating citizens' legal obligations are not subject to copyright, while at the same time both honoring clear federal statutory policy favoring the use of privately developed standards in rulemaking and respecting the needs standards organizations have to find reasonable means to support the costs of their operations. Business models created in the age of print need to change; the challenge is to find ways to permit the market in privately developed voluntary standards to thrive, without thereby permitting the monopoly pricing of access to governing law.Introduction 499A. Voluntary Consensus Standards 499B. Their Occasional Conversion Into Legal Obligations 502C. And Hence the Problem to Be Discussed 507I. The Uncertain State of the Caselaw on the Copyrightability of Standards That Have Been Converted into Law 511n. Federal Regulation of Incorporation by Reference 518A. The Office of the Federal Register 518B. Copyright Preservation as Affirmative Federal Policy? Congress, the NTTAA, the NIST, and the OMB 524C. Possibilities of Change: An Administrative Conference Study, Rulemaking Proposal, and Reconsideration of OMB Circular A-119 529HI. Can the Public Have its Access-to-Law Cake and Standards Developers Eat Revenue from Standards Sales Too? 537A. Proposed Rulemaking and Digital Rights Management 537B. Standards Developed in the Expectation of Incorporation 543C. Standards Developed Independently of Any Expectation of Their Incorporation 546D. Must Incorporation by Reference Create Legal Obligations? 549IV. Changing Part 51 555Conclusion 559IntroductionA. Voluntary Consensus StandardsThis Article addresses the public/private confusions over standards developing organizations' work. …

Distinguishing Between Custom and Law: Empirical Examples of Endogeneity in Property and First Amendment Precedents

Abstract: (ProQuest:. denotes formulae omitted.)IntroductionThis Article discusses the relationship between custom and law to highlight the phenomenon of endogeneity that arises when empirically evaluating the effects of laws. An important literature evaluates the roles of laws in motivating behaviors, including investigations of whether or how laws influence customs and social norms. Traditional economic analysis, for example, posits that codified laws influence behaviors by for- mally incentivizing a particular action, and social norm theories assert that the laws also communicate values.1 Enhancing this strand of thought, an increasing number of works employing historical or empirical analyses have linked laws to broader societal changes over time.2 Meanwhile, a valuable discourse examines how customs may deter- mine both de facto laws and formally enacted laws, including the court precedents that are rendered.3 Whether they are directly codified into a legal test or informally referenced, customs can influence formal laws that are adopted in a community and beyond. Indeed, some scholars have argued that evolving customs and norms have influenced the Supreme Court in its decisions.4The subsequent effects of these formal laws and court decisions are of tremendous interest to policymakers and judges. With policy concerns in mind, we argue that one must not ignore the endogenous feedback between aggregate behaviors, customs, and laws. That is, while customs may shape or influence laws, laws can also shape customs through their effects on behaviors or norms in the aggregate. The endogeneity that custom produces suggests that simply by observing a correlation between law and behavior is not enough to assert that a law in itself is effective or to assert that social trends and evolving customs are driving legal change.5Importantly, legal scholars from historical to international to political perspectives recognize that the interplay between custom and law involves feedback between both.6 Individuals endorse customs partly by learning from the apparent beliefs of others and partly by distorting their public responses in the interest of maintaining social acceptance. "Availability entrepreneurs" manipulate the content of public discourse and strive "to trigger availability cascades likely to advance their own agendas."7 Public discourse, in turn, influences law. Other scholars suggest that customary inter- national law, having no binding power on states, does not influence rational actors who only follow custom insofar as it suits their best interest.8 Theorists have formally modeled this relationship.9 Moreover, whether court decisions respond to the public's policy preferences is important in the larger context of understanding how courts may rely on dominant customs for public legitimacy.10 However, no empirical study ofcustom and law sufficiently addresses this endogeneity in its causal claims, and we are not aware of previous studies that empirically distinguish between law and custom. It remains an open empirical question whether appellate precedent in practice is moti- vated by customs that vary across time and space. To what extent are customs actually driving some laws in real life?We contribute original empirical evidence highlighting the role of custom within court-made law in the United States. To do so, we use a narrower conception of the relationship between custom and law.11 We focus on law as represented by court-made appellate precedent, and to illustrate our points, we use two distinct doctrinal examples in the United States. The first is obscenity law, where custom is directly referenced in the law through the Miller community standards test.12 The second example is takings law, where we argue that entrenched expectations about what constitutes just compen- sation and public use in the Takings Clause of the Fifth Amendment play significant roles in shaping the law though they are not explicitly codified. …

Social Science Studies and the Children of Lesbians and Gay Men: The Rational Basis Perspective

Abstract: This Article seeks to determine whether the social science literature on the children of lesbians and gay men precludes the government from relying on child welfare considerations to justify same-sex marriage bans and parenting restrictions affecting lesbians and gay men under the highly deferential rational basis test. Under that test, courts must uphold laws and regulations that have any conceivable basis of fact which is rationally related to a legitimate state interest. After comprehensively reviewing the social science literature, the Article concludes that the empirical evidence showing the lack of an association between parental sexual orientation and the psychological and social functioning of children is so conclusive and uniform that there is no conceivable factual basis for suggesting otherwise. The Article, however, also concludes that there are sufficient indicia of possible differences-between the children of lesbian/gay parents and those of heterosexual parents-in matters related to gender attitudes/interests and sexual orientation to satisfy the easy-to-meet factual component of the rational basis test. But this indicia of possible difference does not justify the differential treatment of lesbians and gay men in matters related to marriage and parenting because the government does not have a legitimate interest in either promoting specific gender attitudes and interests or in discouraging same-sex sexual orientations and conduct. At the end of the day, therefore, child welfare considerations constitute impermissible bases for the government's differential treatment of lesbians and gay men in matters related to marriage and parenting, even under the highly deferential rational basis standard.INTRODUCTION 692I. THE PSYCHOLOGICAL AND SOCIAL FUNCTIONING OF CHILDREN 702A. Summary of the Social Science Studies 702B. Assessing the Empirical Literature from the Rational Basis Perspective 715C. Questions of Methodology 7171. Sampling Issues 7182. The Age of the Children 721D. The Regnerus Study 724E. Questions of Family Optimality 7281 . The Claim that Children Do Better When Raised by Biological Parents 7302. The Claim that Children Do Better When Raised by a Female Parent and a Male Parent 7333 . The Claim that Children Do Better When Raised by Married Heterosexual Couples 735II. THE GENDER ATTITUDES AND INTERESTS OF CHILDREN 737A. Summary of the Social Science Studies 738B. Assessing the Empirical Literature from the Rational Basis Perspective 744C. The Illegitimacy of the State 's Promotion of Particular Gender Attitudes and Interests 746III. THE SEXUAL ORIENTATION OF CHILDREN 750A. Summary of the Social Science Studies 752B. Assessing the Empirical Literature from the Rational Basis Perspective 755C. The Illegitimacy of the State 's Efforts To Discourage Individuals from Developing a Same-Sex Sexual Orientation or Engaging in Same-Sex Sexual Conduct 7571. Discouraging Same-Sex Sexual Orientation or Conduct 7572. Discouraging Same-Sex Sexual Conduct Among Adolescents .... 761CONCLUSION 764INTRODUCTIONWhen the Supreme Court in 1967 struck down antimiscegenation statutes in Loving v. Virginia,1 it did not reference the empirical literature on the children of interracial relationships.2 Indeed, empirical questions regarding interracial families played no role in the Court's conclusion that antimiscegenation statutes violated the equality and liberty rights of individuals under the Constitution.3In contrast to how the Supreme Court dealt with the interracial marriage question, contemporary courts have frequently turned to the social science literature on parenting by lesbians and gay men in assessing the constitutionality of same-sex marriage bans and parenting restrictions affecting sexual minorities. Some of these courts have relied on the empirical literature's findings to strike down the laws in question. …

Justices Hawking Jesus: Endorsement Through Citation to Religious Amici in Supreme Court Opinions

Abstract: INTRODUCTIONOn June 20, 2002, the Supreme Court handed down its opinion in Atkins v. Virginia, 1 holding that the execution of mentally retarded criminals is a cruel and unusual punishment prohibited by the Eighth Amendment. As part of its reasoning, the Court strove to demonstrate a broad social consensus that execution of the mentally retarded was an unwelcome practice, stating that "representatives of widely diverse religious communities in the United States. have filed an amicus curiae brief explaining that even though their views about the death penalty differ, they all'share a conviction that the execution of persons with mental retardation cannot be morally justified.'"2 The Court's cited source for the religious consensus was an amicus brief submitted by the United States Catholic Conference (USCC).3Though the citation to the USCC's amicus brief was couched in a footnote, it still earned the ire of Justice Scalia's pen. In his scathing dissent, Justice Scalia awarded the "Prize for the Court's Most Feeble Effort to fabricate'national consensus'" to the Court's appeal "to the views of. professional and religious organizations."4 He then specifically addressed the Court's use of the USCC's brief, noting that the Conference is made up of the active Catholic Bishops of the United States, a group whose "attitudes. regarding crime and punishment are so far from being representative, even of the views of Catholics, that they are currently the object of intense national. criticism."5Justice Scalia's major complaint about the Court's use of the information contained in the religious amicus brief seems to be that the information is not at all representative. That is, the information is not necessarily true and the Court does not possess the requisite institutional competency to vet any and all information that comes to it through the amici process.6 There is, however, an underlying concern with the Court's citation to such a brief, a concern that has something to do with the group by whom the brief was actually submitted. The Court charges its opinions with a sort of tension when it uses information and arguments presented by religious organizations. Justice Scalia felt that tension in Atkins.7 The United States is a country built on the premise of the separation of church and state, as embodied primarily through the First Amendment to the Constitution.8 Something about the highest court of the nation-the great bastion of neutrality, the last stop on the road of justice-citing to amicus briefs of religious organizations is just odd enough to give readers pause. This pause stems from a general understanding that religion and government should not be linked to certain degrees or in certain ways, and readers may begin to wonder if that which is odd is merely strange, or if it is a serious constitutional problem.There is, indeed, a First Amendment problem when the U.S. Supreme Court cites to amicus curiae briefs submitted by religious organizations-a problem created by the Court's own interpretation of the Amendment. When the Court cites to amicus briefs submitted by religious organizations, it cloaks that organization with the aura of the Court's power and status in American society. Doing so communicates approval of the organization itself, raising First Amendment concerns. The Court's endorsement of religious organizations through citation in opinions runs afoul of its own Establishment Clause jurisprudence and, in an age when the public eye is critically trained on issues of religion in society, creates certain dangerous harms.This Note seeks to explain the problems created by such endorsement in four parts. Part I explains the amicus process, including who submits amicus briefs and how, as well as the Court's changing use of amicus briefs over time. Part II describes the evolution of the Court's First Amendment jurisprudence, specifically focusing on the development of the endorsement theory and its move to the forefront in Establishment Clause cases, and also explains why endorsement is the appropriate test under which to evaluate citation of religious amicus briefs. …

What Matters More: A Day in Jail or a Criminal Conviction?

Abstract: IntroductionThis Article will examine the Supreme Court's most recent holdings on the right to counsel under the Sixth Amendment1: Padilla v. Kentucky,2 Missouri v. Frye3 and Lafler v. Cooper.4 These cases shed light on the current state of our criminal justice system, a system where criminal convictions carry with them enmeshed penalties5 which are often of greater concern to defendants than actual incarceration and where effective representation during plea bargaining is potentially more valuable than effective representation at trial. Recognizing that there are penalties that result from a conviction which are far worse than incarceration and that our criminal justice system has become essentially a pretrial justice system calls into question the wisdom of the current rule making the Sixth Amendment right to counsel contingent upon actual incarceration following conviction.This Article will trace the Sixth Amendment's evolution from a right to have counsel at trial into a right which attaches at any critical stage of the proceedings. It will analyze the Court's decision to limit the right to counsel to cases where a defendant is actually incarcerated and argue that this limitation is inconsistent with the Court's rationale for requiring the presence of counsel during all critical stages of a criminal prosecution.Even assuming that the actual incarceration standard was a good one at the time it was created forty years ago,6 changes in our criminal justice system have rendered it obsolete. Three developments have made the actual incarceration standard an unjustified limitation on the right to counsel: (1) our criminal justice system's growing reliance on plea bargaining; (2) the rise of enmeshed penalties tied to a conviction; and (3) the widespread availability and dissemination of criminal records.In order to guarantee the right to counsel under the Sixth Amendment, courts need to take into account the potential punishments that result from conviction itself and not focus solely on whether a defendant will be sentenced to incarceration. Courts must recognize that there are severe and lasting penalties which occur automatically as a result of a criminal conviction, even those convictions which never result in the defendant being incarcerated.I. The Expansion of the Right to Counsel Under Padilla, Frye, and LaflerA. Padilla v. KentuckyIn March of 2010, the Supreme Court decided Padilla v. Kentucky.1 The Padilla case involved a claim of ineffective assistance of counsel under Strickland v. Washington.8 The defendant, a lawful permanent resident of the United States who pled guilty to drug distribution charges, claimed that his counsel was ineffective for failing to advise him that his conviction would subject him to deportation.9 The defendant's claim had been rejected by the Supreme Court of Kentucky on the grounds that the advice he sought regarding the risks of deportation concerned only collateral matters.10 Although the precise definition of what constitutes a "collateral," as opposed to a "direct," consequence of a criminal conviction is not entirely clear,11 a collateral consequence is one which generally refers to a matter outside the sentencing authority of the court.12 Following this definition, a state trial court would regard any deportation proceeding initiated in federal court as a collateral consequence of a state court criminal conviction. The Supreme Court of Kentucky found that "collateral consequences are outside the scope of representation required by the Sixth Amendment," and, therefore, the "failure of defense counsel to advise the defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel."13The Supreme Court disagreed and refused to apply "a distinction between direct and collateral consequences to define the scope of constitutionally 'reasonable professional assistance' required under Strickland. …

Charles Koch, Jr. — The Casebook and the Scholarship

Abstract: Charles Koch, Jr. wrote a unique casebook. Seventeen years before the Carnegie Report,1 Charles published a casebook through which students learn by doing what lawyers do when they practice administrative law.2 They represent clients, both agencies and those who deal with agencies. They also engage in the internal processes of the agency, developing procedures, providing legal guidance, and negotiating the often Byzantine interactions of political appointees, technical experts, and strongminded colleagues.Charles created a new agency, the Wine Trade Commission.3 He peopled the Commission and the related wine industry and consumer interests with characters many of us would recognize. We see them as they struggle through the constitutional issues raised by the Wine Trade Commission Act, the development of agency policies and procedures, implementation of rulemaking and enforcement actions, and judicial review, to the eventual departure of two of the lead characters for jobs in Cleveland.4When I first read the simulation, I was struck by how real it seemed. I knew these people. I did what they were doing. I have often wondered how much the simulation reflected what Charles experienced in Washington. His untimely death provides the unwanted opportunity to explore that question and the larger question of what we can learn about Charles from his casebook and his scholarship. I begin with a review of his career up to the creation of the casebook.I. The FTC to William & MaryHaving been raised in a Maryland suburb of Washington, D.C., Charles received his B.A. from the University of Maryland in 1966.5 He then earned his J.D. from the George Washington University Law Center, graduating with Honors in 1969.6 Charles joined the staff ofthe Federal Trade Commission (FTC) in 1969, serving for three years in the Bureau of Consumer Protection and three years in the Office of General Counsel.7It was an interesting time to join the FTC. The previous year, Nader's Raiders had issued The Nader Report,8 which lambasted the FTC as "fat with cronyism, torpid through an inbreeding unusual even for W ashington, manipulated by the agents of commercial predators, [and] impervious to governmental and citizen monitoring."9Nader's Raiders consisted of six law students or law school graduates and one recent graduate of Princeton, Edward F. Cox, Jr., who would go on to marry Tricia Nixon and build a very successful career.10 The others included Judith Areen, later Dean of Georgetown University Law Center; Peter Bradford, later a member of the Nuclear Regulatory Commission; and William Howard Taft IV, later Acting Secretary of Defense and Ambassador to NATO.11Surely The Nader Report itself was an inspiration to Charles as a recent graduate joining the FTC. Moreover, just as Charles was graduating from George Washington, President Nixon asked the American Bar Association (ABA) to conduct a "professional appraisal of the present efforts of the Federal Trade Commission in the field of consumer protection... to be delivered by September 15, 1969."12 After the ABA confirmed The Nader Report findings,13 President Nixon appointed Caspar Weinberger as Chairman of the FTC with a mandate for the "reactivation and revitalization of the FTC."14 Weinberger was followed later that year by Miles Kirkpatrick, who had chaired the ABA Commission that had confirmed the work of Nader's Raiders.15 As described by Edward Cox, Weinberger and Kirkpatrickconsolidated operations into two principal operating bureaus (Competition and Consumer Protection), upgraded the Bureau of Economics to apply sound economic analysis to those operations, established a planning office to set priorities, revamped and upgraded the regional offices to enable local enforcement initiatives, and, most importantly, attracted capable young attorneys with a strong commitment to consumer protection.16Charles was one of the capable young attorneys at the Commission. …

Chevron and the Legitimacy of "Expert" Public Administration

Abstract: Charles Koch's scholarship was very much about the need to dig deeper into the nature of public administration,1 and in the spirit of his work, this Article considers the complex role that expertise plays in the Chevron doctrine A guiding logic of that doctrine is an agency confronts a policy issue as to how to interpret a statute when "Congress has not directly addressed the precise question at issue" and/or "the statute is silent or ambiguous with respect to the specific issue"2 Scholars and lawyers understand Chevron as establishing a deferential scope of review for an agency's resolution of a policy issue because, as compared to the federal courts, the agency has greater expertise and political accountability3 Y et, while expertise is one of the reasons for deferring to an agency's statutory interpretation, the Supreme Court did not explain what is meant by its reference to expertise,4 and, while scholars5 and courts6 continue to refer to the need to defer to expertise, there has been little extended discussion by them about what exactly "expertise" entails7In this Article, we show that digging deeper into the Chevron doctrine and its application reveals the theories of expert public administration that lie behind application of the doctrine Expertise is central to the deference required by Chevron because an understanding of what expert public administration entails, and how it operates is fundamental to understanding what type of power an administrative agency has to interpret a statute The problem is, however, that scholars have not paid enough attention to theories of expert public administration and how they might justify and shape deference In light of long-existing concerns about how to reconcile public administration with liberal theories of constitutional democracy, however, a more robust discourse about deference and its relationship to theories of expert public administration is essentialThis Article is part of an ongoing project by the authors, together, separately, and with others,8 that contends the coherence and effectiveness of the administrative process suffer from the failure to understand the multifaceted nature of expertise and expert public administration Part I provides an overview of Chevron and the role that the concept of expertise figured in the judgment We show that, despite the fact that the treatment of expertise is quite thin in Chevron, it has largely been understood as requiring deference to expertise Nevertheless, the concept of expertise is largely understood in relative terms in that expertise has been understood as meaning that administrators are more familiar with the issues and record than judges9Part II shows that expertise is more than just a relative concept and that an understanding of any particular type of expertise requires not only an understanding of the types of expertise, but also the normative contexts used to understand and evaluate expertise10 Indeed, most arguments made for expertise in the administrative law context are really arguments for expert public administration Across the history of the United States' administrative state, two different paradigms of expert public administration can be seen to have operated; the rational-instrumental (RI) and deliberativeconstitutive (DC) paradigms11 These two paradigms conceptualize expertise and accountability differently because each is based on a different institutional perspective of behavior within public administration An "enlightened" administrative law would reflect both perspectives because there is considerable empirical evidence that both are valid to a degree The problem at present is that the RI paradigm dominates, which results in a range of problems12 Specifically, in relation to Chevron, it results in a failure to see that the doctrine can operate on both an RI and DC basis It also results in a problematic legal fiction-that statutory ambiguity becomes a reason for deference rather than grounding deference in a more robust understanding of the accountability of expert public administration …

An Essay on Due Process and the Endowment Effect

Abstract: IntroductionCharles Koch had a career-long commitment to administrative decisionmaking. Influenced by his five years at the Federal Trade Commission (FTC),1 Charles did creative work on the adjudication process and the role of the Administrative Law Judge (ALJ). He was a key part of the team assembled by the Administrative Conference of the United States (ACUS) under my direction that broadly studied the role of the ALJ and administrative adjudication process.2 So, in Charles's honor and memory, I will try to solve an old administrative due process puzzle: why are those receiving various kinds of government benefits favored procedurally over those seeking them?This inquiry begins, forme at least, with Goldberg v. Kelly,3 where the Court, under the Due Process Clause, granted full adversary procedures to those receiving welfare benefits before those benefits could be terminated (so called pretermination review).4 In doing so, and without saying so, the Court basically traded off the interests of those waiting to receive welfare benefits for the interests of those already on the rolls.5 Because the New York State welfare system had to ration decision resources after Goldberg, the State sought to reduce the number of erroneous grant hearings by making it harder to get on the rolls.6 This process shift further delayed the claims of deserving applicants, delay is not the basis for a legal objection.7 There is, of course, no civil due process right to a speedy benefits determination, as there is a Sixth Amendment right to a speedy trial.8 It has always been difficult for me to accept why the law, without so much as considering the question, should favor the interests of those already on the rolls (even erroneously) over those seeking to get on the rolls (many of whom are eligible for and deserving of benefits).I raised this issue at another William & Mary Symposium twenty-four years ago in honor of the creator of the "new property," Charles Reich.9 The "new property" idea transformed legal analysis by expanding traditional property concepts to include government benefits (and public employment, licenses, etc.).10 This expansion of the property dimension of the Due Process Clause triggered new procedural protections.11 In the course of that Symposium, I urged Reich to acknowledge that his full procedural rights for beneficiaries of government benefits could have a perverse effect-by working to the disadvantage of those who have not yet received them.12 But he would not bite.13 Reich responded with an analogy to government beneficiaries as travelers on an airplane flight: to be entitled to "new property," you had to be on the plane, not standing in line waiting to check in.14 So while my Goldberg critique failed to impress that Charles, this seems an appropriate time to revisit the question (armed with new evidence, of course). I feel sure that our Charles, who attended the Reich Symposium, would enjoy a reprise of this old due process conundrum.I. The Endowment EffectAt the time of the Reich Symposium, behavioral economics had not yet penetrated legal thinking (or at least this legal thinker). Of course, some understood the issue without the aid of new economic thinking. For example, the ever prescient Henry Friendly observed right after Goldberg: "[Tjhere is a human difference between losing what one has and not getting what one wants."15 It should come as no surprise that Judge Friendly, who decided so many major administrative-law cases in his time,16 would get there early on this issue, while I had to wait for behavioral scientists to lead the way.The endowment effect grows out of the "status quo bias" of behavioral economics.17 The theory posits that people value what they have more than what they may gain. It has been applied to legal settings, such as contract remedies (under willingness to pay theories).18 The endowment effect provides analogies readily applicable to public benefit settings. …

Detailing Commercial Speech: What Pharmaceutical Marketing Reveals about Bans on Commercial Speech

Abstract: INTRODUCTIONPharmacies maintain a "potpourri" of records about the prescriptions people bring to be filled, including the drugs, dosages, and prescribers.1 Eventually, this information ends up in the hands of pharmaceutical companies, who use the data to market or detail new medications to physicians based on their prescribing history. Because the data are packaged by prescribing physicians, 2 the data are commonly referred to as prescriber-identifying information. New Hampshire, Vermont, and Maine responded to this practice by passing legislation to ban the use of prescriber-identifying information for marketing or commercial purposes.3 Because pharma-ceutical companies are the largest purchasers of prescriber-identifying information and data processing companies' largest source of income, two data processing com-panies immediately challenged the legislation as a violation of the First Amendment.4 The data processing companies argued that the legislation impermissibly limited then-ability to disseminate information.5 The Supreme Court agreed, but did so under the framework of viewpoint discrimination, casting aside the commercial speech analysis on which the lower courts had based their rulings.6While the outcome of Sorrell v. IMS Health7 is but another example of the Court's effort to erode the commercial speech doctrine, Sorrell pushes the commercial speech doctrine ever closer to that used to analyze noncommercial speech. Noncommercial speech currently enjoys greater judicial scrutiny than commercial speech, 8 but the Court and commentators have questioned the foundations for that division. While some argue that commercial speech is less valuable than political speech, and there-fore undeserving of strict scrutiny, 9 others question the commercial-noncommercial divide and go so far as to advocate eliminating the commercial speech doctrine en-tirely. 10 I propose that commercial speech restrictions fit neatly into two classes: restrictions which limit the time, place, or manner of expression, and holistic bans on a class of speech. I argue that the Court should evaluate bans under the rubric of strict scrutiny, while reserving the Court's intermediate review under Central Hudson Gas & Electric Corp. v. Public Service Commission11 for less restrictive time, place, or manner restrictions. Evaluating commercial speech along these lines has the ad-vantage of greater consistency in the doctrine, while balancing the values that under-lie the First Amendment and commercially motivated speech.Part I explores the parallel paths of commercial speech and the content-based analysis that is central to noncommercial speech. Part II examines the legislation enacted in New Hampshire, Vermont, and Maine, as well as the subsequent split between the First and Second Circuits. It then analyzes Sorrell, emphasizing the ways in which the Supreme Court has demonstrated its desire to alter the commer-cial speech doctrine. Part III then develops the reasons why commercial speech deserves greater protection in the context of outright bans. By examining the poli-cies that support a separate commercial speech doctrine and the policies that support consolidation, I propose a middle ground that balances the values underlying an evolving area of Constitutional Law. Finally, Part IV demonstrates the application of this framework to pharmaceutical detailing.I. Modern Commercial and Noncommercial Speech DoctrinesA. Content-Based Speech RestrictionsWithin the Court's First Amendment doctrine, commercial speech and noncom-mercial speech form two separate tracks under which a court may evaluate a law or regulation that restricts speech. 12 Within the noncommercial track of the First Amendment, the road again splits into content-based restrictions and content-neutral restrictions. 13 Content-neutral restrictions are imposed without reference to the content of the speech. 14 In other words, the speech limit at issue is content-neutral if the government's justification for regulating the speech is not based on what is being said. …

Administrative Searches, Technology and Personal Privacy

Abstract: Although administrative searches have been conducted since the British colonial period, modem administrative searches have become potentially more intrusive because of advances in technology. Agencies still conduct many of the same types of searches that they have historically conducted. For example, federal administrative officials screen airline passengers,' and search liquor stores, firearms and ammunition dealers, pharmacies, employee work sites, mines, the nation's borders, schools, and prisons. In addition, state and local officials inspect restaurants (for health and sanitation reasons), auto junkyards, and the homes of welfare recipients. However, in recent years, new questions have arisen regarding whether administrative inspectors can examine the contents of electronic devices such as laptops and iPhones.

Crossing the Final Border: Securing Equal Gender Protection in Immigration Cases

Abstract: Power without justice is soon questioned. Justice and power must be brought together, so that whatever is just may be powerful, and whatever is powerful may be just.- Blaise Pascal1INTRODUCTIONConsider two men, both Mexican immigrants, both convicted of importing marijuana to the United States and both sentenced as drug offenders. The men are similarly situated in all important regards; the men are the same age, were both born in Mexico, and were brought to the United States when they were very young by a single, unwed parent. Both men were raised in the United States, but neither man formally applied for United States citizenship. The only relevant difference between the men is which parent possesses United States citizenship. In the first case, the offender's mother is a United States citizen; in the second case, the offender's father is a United States citizen. It would seem to most observers that the offenders' parentage should not matter to their sentences as long as both men were convicted of the same crime under the same circumstances. Here however, the stories of the two men diverge. The first offender, whose mother possesses United States citizenship, is sentenced for his crime, serves his time, and is released. The second man, whose father possesses United States citizenship, is sentenced for his crime, reported to immigration authorities, and deported. Though this seems inequitable and arbitrary, it is the current state of immigration law in the United States. The first offender is hypothetical; the second offender is Rueben Flores-Villar.2Although there was early hope that the Supreme Court would overturn FloresVillar' s deportation order,3 his case continued a tradition of Supreme Court decisions affirming Congress's power to regulate facially discriminatory immigration statutes.4 Courts have been reluctantto interfere with immigration proceedings due to Congress's high level of discretion in international and political matters.5 Though the Court does undeniably owe a high level of deference to Congress's plenary control over matters such as immigration law, this is not an absolute grant of power6 - when Congress passes immigration laws that infringe upon other constitutional protections, the Court should retain the power to intervene.7 The Court's continued inaction could lead to a judicial system that does not use its power to ensure the just outcome in all cases.8The constitutionality of 8 U.S.C. § 1409,9 the law allowing the disparate outcome described above, has been heard by the Supreme Court three times and the result has always been the same: the Court recognizes that the statute does produce an inequitable outcome for one class of potential United States citizens, but the Court reasons that the justifications for 8 U.S.C. § 1409 are substantially related to the statute's outcomes.10 Additionally, the Court notes the rich and voluminous history of decisions relating to immigration law.11 Existing immigration jurisprudence has created a seemingly insurmountable stare decisis problem that prevents the Court from intervening in Congress's plenary immigration power to overturn 8 U.S.C. § 1409. 12 Numerous journal articles have predicted or advocated for a new judicial interpretation of the statute.13 Though the articles generally make persuasive points, the Court has affirmed and reaffirmed its point despite any logic or social factors to the contrary. 14 The blatant gender discrimination in 8 U.S.C. § 1409 has caused authors to continue to write on the subject, because the outcome seems fundamentally wrong and unfair to so many. This Note attempts to make the argument that cases such as Flores-Villar should be evaluated in accordance with family law principles as opposed to immigration law alone. This, however, creates its own set of problems. Namely, how should courts go about reconciling the traditionally federal issue of immigration law with family law, which has been left solely to the discretion of the states? …

Seizing a Cell Phone Incident to Arrest: Data Extraction Devices, Faraday Bags, or Aluminum Foil as a Solution to the Warrantless Cell Phone Search Problem

Abstract: When police conduct a lawful custodial arrest, can they search the cell phone in your pocket? Numerous courts have reached conflicting conclusions on this question. This Article argues that police should only be permitted to seize cell phones incident to arrest. If the police are concerned about data being remotely wiped from the phone while they wait for a search warrant, the officers should preserve the data by using either a data extraction device to copy the phone's contents, an inexpensive bag called a Faraday cage to prevent remote wiping of the cell phone, or a simple sheet of aluminum foil to immobilize the phone.Under the search incident to arrest doctrine, police have long been permitted to open any item on an arrestee, whether they have probable cause for that particular item or not.1 The rationale is that arrestees could try to destroy evidence or use hidden objects to harm officers.2 And because police conduct millions of searches per year,3 the Supreme Court has established a bright-line rule.4 Decades of precedent therefore seem to indicate that police can search through the full contents of any item on an arrestee, including electronics.5But surely cell phones must be different. After all, while wallets hold business cards and a few scraps of paper, cell phones contain thousands of pictures, emails, Facebook information, Internet browsing history, and map locations-and that is just the information accessible from the first screen of the device. If the police can search your cellphone incident to arrest, then they can search your entire life. And they would have this power even if they arrested you for a low-level crime-think of public intoxication, petty theft, or even texting while driving6-because longstanding doctrine indicates that the scope of the search has no relation to the severity of the crime of arrest.7In these circumstances, what are courts to do? Should they follow decades of precedent from the pre-Internet era even though that seems illogical? Or should they disregard controlling Supreme Court precedent and try to carve out a new search incident to arrest rule that would only apply to cell phone searches?This Article suggests that the lower courts (and eventually the Supreme Court) should only allow police to seize cell phones incident to arrest. Then, while waiting for a search warrant, police should preserve the cell phone data by using either a data extraction device to copy the phone's contents, an inexpensive bag called a Faraday cage to prevent remote wiping of the cell phone, or a simple sheet of aluminum foil to immobilize the phone.After briefly surveying the state of the law, I review some of the other proposals for limiting cell phone searches and explain why they are flawed.81 then explain the practical ease with which police would be able to seize a phone and preserve its data while waiting for a search warrant.9 Finally, I review previous instances in which the Court has allowed warrantless seizures, but not searches, and demonstrate how cell phones fit squarely into that paradigm.10I. The State of the Law: Confusion and InconsistencyThe initial response by most courts to warrantless cell phone searches incident to arrest was to rely on Supreme Court precedent for tangible items.11 Led by the U.S. Court of Appeals for the Fifth Circuit,12 most courts concluded that cell phones are containers in the same way that wallets, pockets, and purses are containers, and that the phones can therefore be searched incident to arrest.13 By 2010, more than thirty courts had issued opinions approving warrantless cell phone searches incident to arrest.14 As the years ticked on and cell phone technology became more sophisticated, however, courts began to challenge the conventional wisdom.15 In a prominent decision, the Ohio Supreme Court prohibited warrantless cell phone searches incident to arrest because cell phones "are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container. …

International Perspectives on Correcting Wrongful Convictions: The Scottish Criminal Cases Review Commission

Abstract: INTRODUCTIONNot surprisingly, the problem of wrongful convictions has become a global one1 Of the many dimensions of the problem, one of the issues in the international discussion is the role of innocence commissions2 In 1997, the United Kingdom created the first such commission, the UK Criminal Cases Review Commission (CCRC)3 This independent body has the power to investigate and refer claims of miscarriage of justice to the UK Court of Appeal4 Norway has a similar body5 While several US states have study-and-report commissions,6 the only similar, that is, direct review commission in the United States is the North Carolina Innocence Inquiry Commission7 One commission that has received virtually no international attention is the Scottish Criminal Cases Review Commission (SCCRC),8 which was created two years after the UK's CCRC9 Like its older sister, the SCCRC is an independent body with the power to investigate and refer claims of miscarriage of justice to the domestic appellate court10 The SCCRC is the subject of this articleIt should be said at the outset that it is not an easy task to analyze and describe the SCCRC's work in correcting wrongful convictions Unlike its UK counterpart, the SCCRC works under strict statutory non-disclosure rules that keep much of its work from public view11 It is thus impossible, for example, to review cases that are considered and investigated but not referred to the court because the SCCRC is not permitted to disclose its statement of reasons (for referral or non-referral)12 For the same reason, it is not possible to know the basis for a referral, because the statement of reasons in referral cases is also confidential13 While the basis for the referral is sometimes discussed in the ultimate court decision on a referred case, there have in fact been very few referrals and even fewer written decisions From its inception in 1999 to March 2013, the SCCRC had referred only 115 cases14 Only fifty-one have resulted in written decisions15 While this may be an appropriate number of referrals, it is a challenge to discern patterns in such a small body of casesFor these reasons, I requested and was given permission to visit the SCCRC's office in Glasgow, Scotland During that visit I was graciously given the opportunity to speak at length with many members of the SCCRC staff, including its Executive Director, Gerard Sinclair The staff was extremely forthcoming and it was a fascinating visitUltimately, and despite these limitations, it is possible to draw some interesting conclusions about the work of the SCCRC16 First, the SCCRC seems willing to refer cases to the courts based on fresh evidence (what we call "newly discovered evidence"), when the Commission concludes that evidence is important and credible, even if the court ultimately disagrees and holds that it is not significant enough to require quashing the conviction In fact, the SCCRC seems quite confident in drawing its own conclusions about the credibility and significance of fresh evidence in cases in which the court's ultimate decision reveals this to have been a fairly debatable question The same is true of the SCCRC's willingness to refer cases demonstrating that the Crown had improperly failed to disclose exculpatory evidence to the defense (what we call a Brady violation)17 Faced with a case involving serious prosecutorial non-disclosure, the SCCRC is likely to take a broad view of whether the non-disclosed evidence was important to the case, even when the court ultimately disagrees Finally, the SCCRC takes very seriously the requirement that there be something new in the case before it can be referred;18 consistent with the Court of Criminal Appeal's scope of review, the SCCRC will not refer a case in which it is troubled by the reliability of the verdict in the absence of new evidence or a new legal ground to do so19 This same position has led to some substantial criticism of the CCRC …

To Cut or Not to Cut?: Addressing Proposals to Ban Circumcision Under Both a Parental Rights Theory and Child-Centered Perspective in the Specific Context of Jewish and Muslim Infants

Abstract: INTRODUCTIONRecently, a popular cultural, societal, medical, and religious tradition has come under attack First, scholars and, more recently, citizens of San Francisco have called for a ban on male circumcisions1 For just over a decade now, scholars calling for an end to the practice of male circumcision have gained little traction outside academia This was true until a recent ballot proposal in San Francisco, which essentially would have forbidden the practice by criminalizing it, with few exceptions2 Most noticeably, the proposed ban, which was the first of its kind in the country, would not have allowed for religious exemptions3 Unsurprisingly, amid the outcry from religious groups, the California state legislature and Governor Jerry Brown quashed the ballot proposal4 San Francisco's attempted ballot proposal, however, may just be the first political rumblings of a larger battle yet to ensue over male circumcision5Arguably, the most controversial aspect of the San Francisco proposal is the absence of a religious exemption6 This controversy stems from the fact that male circumcision is deeply embedded in religion, specifically Jewish and Islamic practices7 Consequently, Jewish organizations have been among the loudest and most active opponents of the proposed ban - asserting both parental choice rights and religious freedoms8 Historically, arguments advocating for parental control and religious freedom, when coupled together, have received strong protection from the US Supreme Court9Proponents of banning male circumcision describe the procedure as torturous and argue that it should not be afforded First Amendment protection or be subject to parental rights claims10 As an alternative ground for banning circumcision, some have argued that the practice violates the Equal Protection Clause of the Fourteenth Amendment11In response to this debate, this Note analyzes infant male circumcision from two distinct perspectives: a parental rights theory and a child-centered best-interests approachBefore addressing these approaches, Part I provides background material on the historical and religious origins of male circumcision Part II then examines the constitutional claims likely to be brought under a parental rights theory - parental and free exercise claims Part II also considers whether these rights can be conjoined to form a hybrid-rights claim requiring the application of strict scrutiny In finding that they do form a hybrid-rights claim, Part II lays out what strict scrutiny means in the context of circumcision Part III examines the issues implicated by a child-centered approach First, it addresses threshold issues and finds that the applicable approach is a best-interests inquiry Then, Part ?? lays out how best-interests analysis operates and what are the key considerations in its application Next, Part IV applies each approach Part IV concludes that under a parental rights analysis, bans on circumcision do not satisfy strict scrutiny, because the health risks associated with circumcision are minimal Finally, Part V argues that due to the medical and emotional benefits associated with circumcision for Jewish and Muslim infants, the procedure is in their best interestsI BACKGROUND: HISTORICAL AND RELIGIOUS ORIGINS OF CIRCUMCISIONMany associate the beginning of male circumcision with either Judaism or, for non- Jewish men in the United States, with the anti-masturbation movement in the late 1800s12 The origins of male circumcision, however, can be traced as far back as ancient Egypt13 For the Egyptians, the practice of circumcision was a combining of the medical and the mystic in a process of refinement14 As a result, circumcision became identified with prominence and was the aspiration of many15With its origins in Egypt, circumcision soon became one of the defining acts of the monotheistic Jewish culture16 The oldest reference to the actual practice of circumcision in the Jewish Torah is from a story about Moses and his wife, Zipporah17:At a lodging place on the way the Lord met him [Moses] and sought to put him to death …

Administrative Judges and Agency Policy Development: The Koch Way

Abstract: Among the creative contributions that the late Charles H. Koch, Jr., made to administrative law thinking was his exploration of the present and potential role of administrative judges as policymakers. Charles stood in firm opposition to recent trends that, in his view, had served to strengthen the policymaking role of administrative judges at the expense of agency heads. He insisted that ultimate control over the policy direction of a program should rest with the officials who have been appointed to administer that program. While adhering to this baseline, however, Charles gravitated over time toward a nuanced view that sought to define an affirmative role for administrative judges in the policymaking process. He suggested, for example, that these judges could be helpful to agencies by initiating proposals for new directions and by building records that would enable agencies to appraise those proposals. In this sense, he argued, administrative judges could work in collaboration with, rather than at cross-purposes with, the agencies to which they are answerable.This memorial essay aims to review Charles's analysis of this generally neglected topic and to contribute a few additional insights to the discussion. After examining the background issue of where ultimate policy control should rest, the essay describes and evaluates several of Charles's ideas for refinement of the role of administrative judges as policymakers. In addition, the essay takes up related questions regarding agencies' use of regulations and guidance documents to circumscribe the policy choices that administrative judges make.ABSTRACTINTRODUCTIONThe scholarship of the late Charles H. Koch, Jr., ranged over numerous topics in administrative law, both domestic and global, as the articles in this memorial symposium attest. For my contribution, I will focus on an article that Charles wrote about the role of administrative judges as policymakers. I corresponded with Charles on this subject in the spring of 2011, shortly before his passing, and I will draw upon that correspondence, as well as the underlying article, as the basis for reviewing and probing his analysis of the topic and for adding some thoughts of my own.In the early 1990s, Charles participated as one of several consultants to the Administrative Conference of the United States (ACUS) in a study of the administrative law judiciary.1 The study examined the roles of both "administrative law judges" (ALJs) and other administrative adjudicators, often called "administrative judges" (AJs).2 The ACUS recommendation emanating from that study articulated a seemingly unequivocal position:Where the agency has made its policies known in an appropriate fashion, ALJs and AJs are bound to apply them in individual cases. Policymaking is the realm of the agency, and the ALJ's (or AJ's) role is to apply such policies to the facts that the judge finds in an individual case.3As Charles noted to me in our recent correspondence, he would have agreed with that statement at the time the ACUS made it. But, he continued, after talking with administrative judges "I began to see that our (ad law's) thinking is insufficient 5,4 In his more evolved view, he ceased to regard policymaking as falling exclusively within "the realm of the agency."5 Accordingly, he eventually undertook to envision and describe an affirmative role for administrative judges in the process of administrative policymaking. This role, he thought, could include policy incubation and related recordbuilding.6 In this fashion, he argued, the interaction between administrative adjudicators and agency heads in regard to policymaking could be coordinated rather than antagonistic.7 He spelled out this vision most comprehensively in an article published in the Alabama Law Review in 2005, entitled Policymaking by the Administrative Judiciary? In the following pages, I will offer what amounts to a review essay responding to that article. …

Thinking About Slavery at the College of William and Mary

Abstract: I. POST-RECONSTRUCTION AND ANTE-BELLUMDistorting, eliding, falsifying ... a university's memory can be as tricky as a person's. So it has been at the College of William and Mary, often in curious ways. For example, those delving into its history long overlooked the College's eighteenth century plantation worked by slaves for ninety years to raise tobacco.1 Although it seems easy to understand that omission, it is harder to understand why the College's 1760 affiliation with a school for black children2 was overlooked, or its president in 1807 being half-sympathetic to a black man seeking to sit in on science lectures,3 or its awarding an honorary degree to the famous English abolitionist Granville Sharp in 1791,4 all indications of forgotten anti-slavery thought at the College.To account for these memory lapses, we must look to a pivotal time in the late-nineteenth and early-twentieth century when the College, Williamsburg, and Virginia urgently sought a new narrative of Southern history to restore the glory dimmed at Appomattox. It was fruitless in that bruised time after the Civil War and Reconstruction to recall the shameful ante-bellum years when William and Mary's President Thomas Roderick Dew (1802-1846) and its faculty argued for slavery, not as a peculiar institution or a necessary evil, but as an absolute and necessary good.5Since then efforts to deal with the contentious issue of slavery in the College's past have seemed to waver among three possible narratives. One possibility was to walk away, suppressing the subject by silence.6 A second was to mythologize slavery as beneficent and misunderstood.7 And a third was to affirm what Alfred Brophy, in a 2008 article, called the College's "enormous contributions to the cause of antislavery [which today] are in danger of being lost amidst talk of slavery at William and Mary."8 Brophy has in mind simply the anti-slavery views of two early and influential law professors at William and Mary, George Wythe (1726-1806) and St. George Tucker (1752-1827).Each of these narratives has had its turn on the public stage. Silence endured for one hundred years and more, though it shared the stage for several decades with nostalgia for the reimagined ante-bellum years and, much more episodically, with a limited vision of "the cause of antislavery" which I reconstruct and enlarge here.9I shall deal with each of these overlapping approaches, though of silence I need merely note that it appeared early in Reconstruction. An 1870 history of the College does not mention slavery and refers to "servants" only in citing a rule forbidding any except "those authorized by the F acuity" from entering "the College yard or building. "10 But the other options, of idealizing slavery as it existed locally or honoring the earlier anti-slavery sentiment at William and Mary, require fuller examination.To reconstruct a healing version of the College's and Williamsburg's glorious pasts (as was attempted after the Civil War) required inventing a history of how benign slavery had been, locally at least. Softening reality and tidying it up was almost as easy as silence-the narrative already had local sources in the ante-bellum idealization of slavery by another William and Mary law professor, Nathaniel Beverley Tucker (1784-1851), usually called Beverley, son of St. George Tucker. This option prevailed most powerfully late in the nineteenth century and early in the twentieth when a num- ber of people connected to the College affirmed it, but it was attractive enough to have a remarkable lasting influence.11 Even in 2011, the Virginia Gazette, Williamsburg's newspaper, could mark the anniversary of the Battle of Williamsburg by claiming that "[w]hile slavery was a central point of the war, it was not much of an issue here in 1862."12This manufactured fantasy of benign and happy slavery was part of the larger Southern mythology of moonlight and magnolias that framed the creation of the Association for the Preservation of Virginia Antiquities (APVA) in Williamsburg in 1889. …

Power and Responsibility: Fourth Amendment Limits on the Use of Molecular Scanners

Abstract: [N]ow the right to life has come to mean the right to enjoy life,-the right to be let alone ....-Samuel Warren and Louis Brandeis1Introduction 244I. Knowledge Is Power: The Value of Privacy 245A. Privacy Defined 245B. The Value of Privacy 246C. The Coercive Power of Knowledge 248n. The Right to Privacy Historically 249A. Common Law 249B. Constitutional Doctrine 2501. Fourth Amendment Text and Original Intent 2502. Cases 252C. Federal Legislation 256D. International Law 258HI. Distinguishing Molecular Scanners from Similar Technologies .. 259A. "Molecular Scanner" Defined 259B. Comparison to Backscatter and Millimeter Wave Technology 261IV. Molecular Scanning Under Current Law 262A. The War on Terror and Warrantless Searches 2631. Molecular Scanning as a "Search" 2632. The Reasonableness of Molecular Scanning 2653. The Reasonableness of Storing Molecular Scan Data 2674. The Intersection of Privacy and Free Speech 269B. The Drug War: No Minimum Threshold for Drug Possession 2721. Plain View Doctrine and Twenty-First Century Imaging 2722. Contraband Possession Thresholds and the Door to Dystopia ... 273Conclusion 274IntroductionWe live in a unique and momentous era of human history. This era will be characterized by future generations as a dialectic struggle between power-the modem technologies that inspire and make possible grand egalitarian achievement-and responsibility-the normative principles that inform how egalitarian ends ought to be defined.2 This dialectic is especially pronounced at the intersection of homeland security and constitutional law.3 Although constitutional law has evolved to accommodate a wide diversity of powerful modem technologies, such as nuclear power,4 the Internet,5 and Global Positioning Systems (GPS),6 constitutional law has failed to anticipate adequately advances in molecular spectroscopy7 and fiber laser8 technology that threaten to overwhelm current privacy doctrine, especially as applied in the context of the War on Terror9 and the Drug War.10This Note is organized into six parts and proceeds as follows. Part I defines "privacy" and examines the value of privacy as traditionally recognized in the context of identity formation, social cooperation, and law enforcement. Part II discusses the right to privacy historically as developed through the common law, constitutional law, federal legislation, and international law. Part ID distinguishes molecular scanners from less powerful scanning technologies by contrasting millimeter wave and backscatter imaging technology with the picosecond synchronized programmable laser (PSPL), a molecular scanner developed for use by the United States Department of Homeland Security.11 Part IV examines molecular scanning as applied in the context of the War on Terror and the Drug War and analyzes whether molecular scanning constitutes a "search" under the meaning of the F ourth Amendment, whether such a search is reasonable, whether storing molecular scan data is reasonable, and whether molecular scanning violates the F ourth Amendment as constructed with the First Amendment. Part IV also suggests that ambiguities in current Fourth Amendment doctrine and the absence of minimum quantity thresholds for contraband possession could undermine privacy if left unaddressed. Finally, the Conclusion summarizes the arguments of the previous parts and offers a call to action.I. Knowledge Is Power: The Value of PrivacyA. Privacy DefinedThe English word "privacy" is derived from the Latin words privatus, meaning "withdrawn from public life," and privare, meaning "to bereave or deprive."12 Under Roman law, privatus referred to "private" ownership, in contradistinction to ownership by the populus Romanus, or "people of the republic."13 The word "privacy" is often untranslatable by linguists because many languages lack a specific word to describe the concept of privacy. …

The Dormant Second Amendment: Exploring the Rise, Fall, and Potential Resurrection of Independent State Militias

Abstract: The term "militia" is polarizing, misunderstood, misapplied, and generally difficult for modern Americans to digest. That is not surprising, given the depth and breadth of American militia history and militias' substantial evolution over four centuries.Historically, militia simply refers to a broad-based civic duty to protect one's fel-low citizens from internal and external dangers and is not limited to activities involving firearms. Reestablishing militia's true meaning and purpose-and re invigorating in-dependent state militias in the United States to effect that purpose-has the potential to address states' emerging financial and security gaps and to produce multiple other significant benefits, including recalibrating federalism. This Article suggests a method for how best to reinvigorate independent state militias, addresses the major critique against doing so, and initiates a real discussion about the future of state militias-an issue conspicuously underdeveloped in scholarship today.INTRODUCTION. 1023I. THE ORIGIN, NATURE, EVOLUTION, AND EFFICACY OF STATE MILITIAS. 1024A. State Militia Duty Obligations and Affected Citizens... 10241. Early American Militias Derived from European Militias and Imported Similar Concepts of Militia Duty. 10242. State Militia Duty Was Imposed on a Broad Swath of Citizens, but Not All.... 10263. Militia Duty Initially Was Mandatory, but State Militias Later Embraced Actual or De Facto Volunteer Models....1026B. State Militias and Government.......10291. Militias' Unique Relationship to Government Arises from the Colonizing Agencies' Need for Militias....10292. Early State Militias Enjoyed Flexibility To Specialize Their Forces To Maximize Efficiency and Effectiveness... 10303. The Constitution and the Militia Act of 1792 Provide Limited National Control over State Militia Members..... 10314. Additional Federal Laws Cement the National Government's Actual or De Facto Control over All State Militias. 1033C. Core Functions of State Militias. 10371. Domestic Defense. 10372. Domestic Security and Emergency Response. 10433. Check on Government Overreaching and Tyranny. 1047D. General Observations. 1052II. ADDRESSING THE INITIAL LEGAL QUESTIONS ABOUT REINVIGORATED INDEPENDENT STATE MILITIAS: THE COLLECTIVIST CIVIC-REPUBLICAN CRITIQUE AND STATE CONSTITUTIONS. 1052A. The Civic-Republican Critique. 10531. Historically, State Militias Have Not Been Universal; Nevertheless, They Have Provided Broader and More Undivided Representation of Citizen Interests than Professional Alternatives. 10532. Historical Militias Were Not Universally Virtuous-Some Members Avoided Their Duty Altogether; Others Performed Poorly. 10573. Reinvigorated State Militias Can Rely on Citizens To Provide Their Own Arms. 10614. The Civic-Republican Critique Correctly Favors Open, Flexible, Inclusive State Militias, but This Presents No Obstacle to Reinvigorated State Militias. 1062B. State Constitutions and Militia as an Individual Duty. 10631. Militias Were Created To Enable Specialization, Flexibility, and Rapid Response to Community Concerns, Which Goals Cannot Be Accomplished Through a Pure Collective-Duty Approach. 10642. Militia Duty Historically Respected Militia Members' Authority To Reject Government Calls for Action When They Believed That Government Action Exceeded Its Authority, Which Is Inconsistent with a Purely Collective Duty. 10653. State Constitutions Support the Conclusion That Militia Duty Is Individual, Not Collective. 1066III. HOW REINVIGORATED INDEPENDENT STATE MILITIAS COULD HELP ADDRESS EMERGING DOMESTIC-SECURITY AND EMERGENCY-RESPONSE NEEDS AND RECALIBRATE FEDERALISM. 1068A. The National Guard and Domestic Defense. 1068B. States' Emerging Domestic-Security and Emergency-Response Needs. 10691. …

A Winn for Originalism Puts Establishment Clause Reform within Reach

Abstract: In Flast v. Cohen, 1 the Supreme Court held that taxpayers could bring suits challenging government expenditures alleged to violate the Establishment Clause. Flast was a pivotal decision implicating two of the most difficult areas of constitutional law, the volatile interplay of law and religion, 2 and the complex justiciability doctrines the Court uses to determine its jurisdiction under Article ΠΙ.3 In Flast the Court took up this task as part of its effort to harmonize two fundamental interests, the government's power to tax and spend for the general welfare on the one hand, and our individual right to religious liberty on the other.4 But Flast has proven deeply problematic, with two sitting Justices and prominent academics calling for its reversal.5The Court's most recent effort to deal with the troubled legacy of Flast is Arizona School Tuition Organization v. Winn, 6 in which the Supreme Court rejected a tax-payer challenge to a tuition tax credit that benefitted religious schools advanced under Flast.1 Although decided only last term, Winn has already been criticized as being inconsistent with Flast and the original understanding of the Establishment Clause.8I disagree. Quite the contrary, I believe that Winn puts the Supreme Court within reach of a comprehensive reform of its taxpayer standing doctrine that is both principled and consistent with the original understanding of the provision. For the same reason, I do not believe that Flast needs to be overruled in order to address the serious problems the decision has created; it simply needs to be limited along the lines suggested by Winn.In Winn, the Supreme Court recognized that in order to demonstrate standing under the Establishment Clause a taxpayer must be able to show a personal injury caused by the use of the taxing power; more specifically, that the government has used its taxing power to "extracft]" money from the taxpayer that is later used to support religion.9 Winn makes plain that a taxpayer cannot show the injury needed to support standing simply by pointing to a use of the taxing power that provides some generalized benefit to religious institutions. 10 Much needed reform of Flast can be achieved simply by employing the more refined focus used in Winn to isolate the precise spending of public funds that creates a taxpayer injury that is cognizable under the Establishment Clause.The Court should recognize that the type of spending that violates the Establishment Clause, creating the taxpayer injury cognizable under the Establishment Clause, is an extremely narrow category of expenditures that use public funds to support what the Court has called "inherently religious" activity. 11 In so doing, the Court will obviate the basis for taxpayer challenges to the vast range of spending programs through which government and religious entities cooperate to advance legitimate social goals. It will do so by recognizing that the Establishment Clause was not understood to bar spending programs that advance secular goals through providing funding to religious organizations, even if such spending provides a collateral benefit to religious institutions, and consequently, that such programs do not give rise to a taxpayer injury cognizable under the Establishment Clause. The Court has an historic reform of its precedent within reach.In Part I, I briefly sketch the original understanding of the Establishment Clause and show that it was not understood to prohibit spending programs that extended benefits to religious institutions providing general social welfare services. I argue that while the rationale for taxpayer standing in Flast is consistent with the original understanding of the First Amendment, the actual holding in Flast represented an historically unsupported and unsound expansion of claims that were cognizable under the Establishment Clause. 12In Part II, I survey Supreme Court cases entertaining challenges to spending programs that conferred some arguable benefit on religious entities from Flast through Mitchell v. …

Election Evidence: The Promises and Realities of California's Citizen Commission

Abstract: (ProQuest: ... denotes "strike-through" in the original text omitted.)[W]henever the people shall choose their representatives upon just and undeniably equal measures,... it cannot be doubted to be the will and act of the society ....-John Locke1The character of our democracy is at stake in how we elect our representatives as much as in which representatives we elect and what laws they enact.-Dennis Thompson2IntroductionThat California political and electoral pathologies are some of the worst in the nation has become axiomatic. The state is known for its crisis in governance,3 a notoriously tardy budget,4 and bizarre congressional districts.5 This reputation, indeed much of California history, is a double-edged sword. Along with these pathologies and systemic breakdowns come success stories in reform.6 In a nation of states as incubators for policy experimentation, California is a teeming Petri dish.7 The state has developed a reputation for setting national trends in social8 and political reform, often decades before other states.9 For example, California is one of only twenty-two states to adopt the initiative,10 referendum,11 or both during the Progressive Era of the early twentieth century.12 Of these states, California is one of only ten to adopt the initiative for both statutes and state constitutional amendments.13 While more than a third of the states have provisions allowing citizens to recall elected officials,14 the procedure had only been used once in the United States to recall a governor before the recall of California Governor Gray Davis in 2003.15 Yet California is not j ust experimental and progressive. Steeped in populism, its measures consistently undermine the political power of elected representatives by turning power back to voters "making public policy at the ballot box."16 It is no surprise then that California's most recent effort to reform the process of redistricting is also among the most progressive and antipolitician in the nation: the adoption of an independent citizens redistricting commission.17The independent commission ostensibly depoliticizes the process of drawing state senate, assembly, and congressional district lines by removing politicians almost entirely from the process. While controversial, these commissions address the inherent conflict of interest of partisan gerrymandering. Yet advocates have also touted the citizens commission's potential to increase district competitiveness, reduce partisanship in government, and create more centrist legislatures.18 If true, commissions may untie the Gordian Knot of dysfunctional government and reduce much of the gridlock plaguing California government.19This Note's main finding is that these possibilities are overstated, especially in view of the results of the 2012 election in California. Even if greater competitiveness is desirable and offers these potential outcomes, the constraints on legislative redistricting also constrain citizens commissions. These constraints stem from federal statutes, court decisions, and state guiding principles. As a result, redistricting commissions cannot create as many truly competitive districts as hoped and offer little of the promises made by their proponents. On the other hand, the California citizens commission did achieve its most obvious and primary goal: to remove self-interested legislators from the process and make it "open so it cannot be controlled by the party in power."20This Note concludes that the primary impact of the citizens commission's work in California has been to increase the appearance that the system is less beholden to politicians and to weaken the power of legislators to use redistricting in political horse trading. The new maps also forced several legislators to retire rather than face opponents they could not defeat or more popular fellow party members.21This Note proceeds in four parts: Part I outlines the constraints that Congress, the Supreme Court, and state legislatures place on redistricting. …