Showing papers in "William and Mary Bill of Rights Journal in 2017"

Feeding the Machine: Policing, Crime Data, & Algorithms

Abstract: Discussions of predictive algorithms used by the police tend to assume the police are merely end users of big data. Accordingly, police departments are consumers and clients of big data -- not much different than users of Spotify, Netflix, Amazon, or Facebook. Yet this assumption about big data policing contains a flaw. Police are not simply end users of big data. They generate the information that big data programs rely upon. This essay explains why predictive policing programs can’t be fully understood without an acknowledgment of the role police have in creating its inputs. Their choices, priorities, and even omissions become the inputs algorithms use to forecast crime. The filtered nature of crime data matters because these programs promise cutting edge results, but may deliver analyses with hidden limitations.

Horizontal Cybersurveillance through Sentiment Analysis

Abstract: This Essay describes emerging big data technologies that facilitate horizontal cybersurveillance. Horizontal cybersurveillance makes possible what has been termed as “sentiment analysis.” Sentiment analysis can be described as opinion mining and social movement forecasting. Through sentiment analysis, mass cybersurveillance technologies can be deployed to detect potential terrorism and state conflict, predict protest and civil unrest, and gauge the mood of populations and subpopulations. Horizontal cybersurveillance through sentiment analysis has the likely result of chilling expressive and associational freedoms, while at the same time risking mass data seizures and searches. These programs, therefore, must be assessed as adversely impacting a combination of constitutional rights, such as simultaneously affecting both First and Fourth Amendment freedoms. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362 I. RELATIONSHIP BETWEEN BIG DATA NATIONAL SECURITY POLICY AND BIG DATA CYBERSURVEILLANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366 A. Overview of Big Data National Security Policy . . . . . . . . . . . . . . . . . . 366 B. Overview of Horizontal Cybersurveillance . . . . . . . . . . . . . . . . . . . . . 369 C. Horizontal Cybersurveillance Through Sentiment Analysis: Future Trajectory of Big Data National Security Policy . . . . . . . . . . . . . . . . . 372 II. SOCIAL RADAR CASE STUDY: THE FUTURE OF BIG DATA NATIONAL SECURITY POLICY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374 A. Brief History of Horizontal Cybersurveillance Programs . . . . . . . . . . 375 B. Basic Mechanics of Social Radar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378 C. Current Status of Social Radar and Social Radar-Type Programs . . . 379 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381 * Associate Professor of Law, Washington and Lee University School of Law. I would like to extend my deep gratitude to those who graciously offered comments on the research, including Andrew Christensen, David Gray, Stephen Henderson, and Steve Miskinis. In addition, this research benefitted greatly from the discussions generated from the William & Mary Bill of Rights Journal 2017 Symposium: Big Data, National Security, and the Fourth Amendment. Many thanks to the research assistance of Alexandra Klein, Kirby Kreider, and Carroll Neale. All errors and omissions are my own.

The Government Speech Doctrine in Walker ’s Wake: Early Rifts and Reverberations on Free Speech, Viewpoint Discrimination, and Offensive Expression

Abstract: INTRODUCTIONThere may be situations in which it is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech[.]1In 2015, a sharply divided United States Supreme Court provided stark proof of the epigraph above when it held in Walker v. Texas Division, Sons of Confederate Veterans, Inc.2 that Texas's specialty license plates constitute government speech rather than private expression.3 That conclusion, in turn, led the majority to find that the Lone Star State did not violate the First Amendment4 speech rights of the Sons of Confederate Veterans (SCV) when it denied that organization's request for a specialty plate featuring the image of a Confederate battle flag.5Application of the government speech doctrine is critical in rendering nugatory First Amendment claims like those of the SCV. That is because, as Dean Erwin Chemerinsky points out, "when the government is the speaker, the First Amendment does not apply at all or provide a basis for challenging the government's action."6Indeed, Justice Stephen Breyer explained for the five-Justice Walker majority7 that "[w]hen government speaks, it is not barred by the Free Speech Clause from determining the content of what it says."8 The distinction between government speech and private expression, the latter of which is subject to the full panoply of First Amendment safeguards, thus "is often of substantial importance from the perspective of free speech law."9Walker's outcome banning Confederate battle flags on license plates surely was emotionally satisfying for many people.10 As Chemerinsky explains, "[i]t is easy to like the result in this case because [C]onfederate battle flags convey a message of racism that is inherently hurtful and divisive."11 Although everyone may not agree with Chemerinsky's contention, "polls have indicated that most African Americans view the Confederate battle flag as racist and emblematic of 19th century efforts to preserve slavery as well as 20th century efforts to maintain a segregated South."12 In Walker, although the SCV claimed its proposed plate was "merely honoring those who fought for the South during the Civil War,"13 Texas denied the application precisely because it found the flag "offensive."14Yet Chemerinsky, from a macro-level perspective stretching beyond the specific facts of Walker, is displeased with the majority's approach to government speech- so much so he confesses "I don't get to say this often, but . . . I think that the conservative Justices-Roberts, Scalia, Kennedy and Alito-got it right" in their Walker dissent.15 Specifically, the liberal-leaning Chemerinsky16 asserts:[T]here is much that is troubling about the [C]ourt's approach. If license plates are government speech, and the government can say whatever it wants, does this mean the government can put any message it wants on license plates and require that people have that on their cars? What if the government wants to put a message that abortion is murder or a message to vote Republican? The [C]ourt's approach says that when the government is the speaker, it cannot be challenged for violating the speech clause of the First Amendment.17He adds that "the [C]ourt's approach gives the government the ability to avoid free speech challenges by declaring that something is government speech. Could a city library choose to have only books by Republican authors by saying that it is the government speaking?"18This Article examines the immediate ramifications of Walker, particularly in light of Chemerinsky's fears regarding possible fallout in pro-conservative-view fashion.19 Part I initially reviews the government speech doctrine and the Court's decision in Walker, including the logic and reasoning applied by both the majority and dissent.20 Part II then explores Walker's immediate impact on cases21 involving specialty license plate policies in states other than Texas. …

False Commercial Speech and the First Amendment: Understanding the Implications of the Equivalency Principle

Abstract: INTRODUCTIONIn the late 1960s, the Phillip Morris Company introduced a cigarette known as "Virginia Slims."1 In an effort to give the cigarette a marketing personality, the company advertised it as a cigarette for women, apparently attempting to tie the brand to the burgeoning women's liberation movement.2 Its highly successful slogan was, "You've come a long way, baby."3 The slogan was designed to get women to realize how far they had come in terms of independence in what had previously been a man's world, and identify that independence with the cigarette made especially for them.4 One can debate the morality of such an advertising campaign, but however one feels about its merits or demerits, there is no doubt that the campaign's slogan could easily be applied to commercial speech itself. Although it took almost seventy years, commercial speech went from being outside the First Amendment looking in to a status almost equivalent to that of the most protected forms of expression.5For many years, commercial speech was summarily excluded from any meaningful level of constitutional protection under the First Amendment right of free speech.6 In its 1976 decision in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.,1 the Court changed all of that by extending a not-insignificant level of constitutional protection to commercial speech.8 However, the Court quickly made clear that commercial speech is "afforded . . . a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values^]"9 As a result, the Court deemed itself free to uphold regulation of commercial speech when the regulatory authority established merely that damage "may" occur,10 or that there is a "possibility" of harm resulting from the speech in question.11 This degree of protection was far less than that given most categories of noncommercial speech, for which the showing of a "compelling interest" was usually required to justify suppression.12The famed four-pronged test from Central Hudson Gas & Electric Corp. v. Public Service Commission,13 adopted by the Court in 1980, at best appeared to extend commercial speech a form of intermediate scrutiny protection, still far below the strict scrutiny/compelling interest protection given more traditionally protected categories of noncommercial expression.14 The Court purports to continue to apply that test to this very day.15 Beginning in 1993, however, both the Court's rhetoric and decisions began to change.16 Since that year, it is difficult to find a Supreme Court decision upholding the suppression of truthful commercial speech. As a practical, if not a formal, matter, then, it could reasonably be said that today, truthful commercial speech receives a level of protection approaching, if not actually reaching, the level of protection received by noncommercial speech.17 In fact, in recent years the Court appears to have adopted the principle that, contrary to statements in its decisions during the early years of the commercial speech doctrine, in the broad scheme of the First Amendment truthful commercial speech is deemed to have value equivalent to that of noncommercial speech.18 To the extent commercial speech can be suppressed in situations where noncommercial speech would be protected, it must be because of a showing of harm uniquely associated with commercial speech.19 For purposes of convenience, we refer to this judicial assumption of equivalent value of commercial and noncommercial speech as the "equivalency principle." We do not mean to suggest that the Supreme Court has at this point fully recognized the inexorable doctrinal implications of its own equivalency principle.20 But there can be no doubt that the Court has in fact adopted the principle. Indeed, in its most recent statements on the issue, the Court has held that governmental regulation providing noncommercial speakers better treatment than comparably situated commercial speakers is deserving of strict scrutiny. …

No Regrets (Almost): After Virginia Board of Pharmacy

Abstract: INTRODUCTIONMy basic idea behind the case that became Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.1 (Virginia Pharmacy) was that the emphasis under the First Amendment should be on the impact of denying consumers access to useful information, rather than on the restrictions on the seller or would-be speaker.2 Virginia Pharmacy involved a total ban on the advertising of the price of prescription drugs by pharmacists.3 Pharmacists could advertise, and they could compete on price for prescription drugs, but they could not tell anyone what they were charging for a drug, unless the customer came into the store or called on the phone.4 Many consumers were living on low or fixed incomes, and drug prices were a significant part of their expenses, yet they were being denied access to the information needed to find the most affordable drug that met their needs.5At the time the case was filed, I had just begun to serve as the director of the newly formed Public citizen Litigation Group, with Ralph Nader as my boss. one of our goals was to increase the availability and affordability of legal services for ordinary people, and I had identified the total ban on all lawyer advertising as a promising area to challenge. The prescription drug ban on price advertising was chosen as our first advertising case because, while false advertising can be banned, the Virginia law applied to useful information whose truth (accuracy) could easily be verified. With a win here, we planned to move on to the lawyer advertising ban, with an intermediate stop in a case in which the local medical society threatened to discipline doctors if they provided factual information, such as where they went to medical school, whether they were board certified in a specialty, whether they spoke a foreign language, and whether they accepted Medicare and Medicaid. Thus, the application of Virginia Pharmacy to lawyer advertising was not simply a side effect, but where we hoped to end. And i was prepared for a question at oral argument on that very subject, which came out in a somewhat different form than I had expected.6In the years since then, people who knew of my connection to Virginia Pharmacy would ask whether I was pleased with how the case had played out, especially regarding lawyer advertising, which i took to mean the kind featured on late night television. My answer was generally along the lines of not liking some aspects, but that the ability of consumers to obtain important information from lawyer advertising far outweighed the sometimes outlandish ways in which the information was conveyed. When the invitation to participate in this symposium arrived, I decided to take the opportunity to look over the cases in the supreme Court and the circuit courts of appeals to see where they had taken the Virginia Pharmacy case and see whether my answer was still, "No regrets."Before looking at those cases, I need to explain my criteria for regrets. Until Virginia Pharmacy, commercial speech had no First Amendment protection, and afterwards, particularly after Central Hudson Gas & Electric Corp. v. Public Service Commission of New York,7 it received substantial protection, although less than political or ideological speech. Our argument in Virginia Pharmacy did not urge the Court to create a lower category of speech, but that is how it ended up.8 When I was asked about how the case had played out, the questions were not directed toward whether the Court had given too little protection for commercial speech, but too much. Therefore, in this Essay, I will not discuss cases in which I think the Court restricted too much speech (often as applied to lawyers), but only the most significant ones where it gave what I consider too much protection, i.e., the Court failed to consider other important interests besides that of the speaker.There is a second area that I have chosen to omit from any extended discussion. This area involves cases in which a government agency has directed a person (generally a business) to include additional information in an advertisement or other statement that the business is required or has chosen to disseminate, referred to in some contexts as compelled speech. …

Reducing the Dangers of Future Dangerousness Testimony: Applying the Federal Rules of Evidence to Capital Sentencing

Abstract: The United States Supreme Court has long held that the death penalty cannot be imposed arbitrarily, and that during sentencing in capital cases, jurors must be provided with guidelines to assist them in narrowing down the class of individuals for whom the death penalty is appropriate. Typically, this is accomplished through the presentation of aggravating and mitigating evidence. One aggravating factor is a capital offender’s future dangerousness, or the likelihood that the individual will engage in violent institutional misconduct while in prison. Future dangerousness may be assessed using a variety of measures; Hare’s Psychopathy Checklist-Revised (PCL-R), a measure of personality traits associated with psychopathy, is one such measure that informs future dangerousness testimony. However, research suggests that the predictive validity of the PCL-R regarding violent institutional misconduct is weak-to-moderate, and that presentation of such evidence can prejudice jurors such that they will be more likely to assign the death penalty than they would in the absence of such evidence. These findings are concerning, particularly considering the severe social costs and individual rights deprivations associated with the death penalty. This Article will trace the history of Supreme Court capital sentencing decisions, examine the scientific literature regarding the predictive validity and bias potential for PCL-R evidence in capital sentencing, and argue that, in light of this weak literature base and the deleterious impact that misguided capital sentencing can have, applying the Federal Rules of Evidence to capital sentencing contexts may present an effective solution for keeping specious future dangerousness evidence out of the courtroom. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048 I. DEATH AND THE SUPREME COURT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1051 II. FUTURE DANGEROUSNESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056 A. Legal Foundation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056 * Jaymes Fairfax-Columbo is a JD/PhD student in Clinical Psychology at the Drexel University Thomas R. Kline School of Law and the College of Arts and Sciences; JD expected 2017, PhD expected 2019; BA Swarthmore College. David DeMatteo, JD, PhD, ABPP (Forensic), is an Associate Professor of Psychology and Law at Drexel University, where he is also Director of the JD/PhD Program in Law and Psychology.

Carpenter V. United States and the Fourth Amendment: The Best Way Forward

Abstract: We finally have a federal ‘test case.’ In Carpenter v. United States, the Supreme Court is poised to set the direction of the Fourth Amendment in the digital age. The case squarely presents how the twentieth-century third party doctrine will fare in contemporary times, and the stakes could not be higher. This Article reviews the Carpenter case and how it fits within the greater discussion of the Fourth Amendment third party doctrine and location surveillance, and I express a hope that the Court will be both a bit ambitious and a good measure cautious. As for ambition, the Court must recognize that the fundamental liberty protected by the Fourth Amendment—the right to be “secure in [our] persons, houses, papers, and effects”—is squarely at issue when the government seeks to track our longer term movements, whether historically or prospectively. It is not business records, beepers, automobiles, phones, cameras, drones, or some other coincidental medium or technology that is at issue: it is our constitutionally protected liberty. Thus, the Court should hold that law enforcement acquisition of longer term cell site location information (CSLI) constitutes a Fourth Amendment search, ending the monolithic, anachronistic third party doctrine. As to the precise durational trigger and as to what particular law enforcement restraint would be correspondingly reasonable, the Court should be cautious, as it was in United States v. Jones and Grady v. North Carolina. It will have taken the better part of a half century to undo the Court’s expansive third-party declaration in United States v. Miller, an unnecessary overreach best relegated to history. Thus, while the Court should not abandon Fourth Amendment development through reasonable reliance, it should remand these constitutional determinations for lower court development. Those courts should consider not only Fourth Amendment precedents, but also how state supreme courts have independently interpreted their own constitutions.

The Status of the Hearer in Mr. Madison's Neighborhood

Abstract: INTRODUCTIONCurrent Supreme Court free speech doctrine is relentlessly speaker-centered1 Even the government, usually the villain in any First Amendment story, is granted highly favorable legal status the moment it dons the speaker's mantle2 Why? It cannot be because the speaker is the only game in First Amendment town As I have noted,3 a census of Mr Madison's First Amendment neighborhood reveals at least five prominent categories of residents: (1) speakers; (2) hearers; (3) conduits; (4) the subjects/targets; and (5) regulators, both private and public; as well as two less prominent players: the general audience and disinterested bystanders Measured by the relative amount of Supreme Court ink they command, however, speakers have all but monopolized the Justices' sympathy and attentionBeginning with the classic Holmes/Brandeis rhetoric in Abrams v United States,4 Gitlow v New York,5 and Whitney v California,6 the Supreme Court Reports are full of rhetoric about heroic speakers involved in dignitary self-realization, and/or earnest instrumental speakers pumping useful information and ideas into the information marketplace Occasionally, the Court's efforts to characterize a particularly appalling or pathetic speaker as heroic or instrumental borders on the risible Witness the Court's treatment of the pathetic liar in United States v Alvarez,7 whose false claims about having received a Congressional Medal of Honor were recycled by the Court as dignitary efforts at self-definition;8 or the Court's characterization of the ugly antigay bigots in Snyder v Phelps,9 who hijacked the funeral of a young soldier killed in Afghanistan as a launching pad for their messages of hate directed at the soldier's grieving family, as instrumental speakers commenting on public issues10 And then, there is the wise guy in Elonis v United States11 who terrified his ex-wife on the Internet by quoting violent rap lyrics aimed at her on his web site, and got away with it because the Court did not want to burden Internet speakers with a criminally enforceable duty to avoid speech that they knew or should have known would frighten a particular target;12 and the teenage cross-burners who frightened black families newly arrived in a white neighborhood by burning crosses on sidewalks abutting their homes, but were treated by the Court as protected speakers in the absence of proof beyond a reasonable doubt of a subjective intent to frighten their new neighbors13I do not recall in the intensely speaker-centered opinions anything but a passing reference to the interests or concerns of the other participants in the process in Alvarez, did the families of genuine Medal of Honor winners feel that their husband's or father's heroic act of self-sacrifice had been cheapened? Did the grieving parents of the dead young soldier in Snyder weep? Did the terrified ex-wife in Elonis miss work? In R A V v City of St Paul,14 how did the black kids react to the burning of a cross on their doorstep? Did the other black families reconsider whether to move into the neighborhood? Did the Supreme Court care?Perhaps the intensely speaker-protected First Amendment doctrine emerging from such cases is correct, but not because the speakers were either heroic or genuinely instrumental; or because the hearers were unworthy of concern In fact, the speakers were instrumentally useless, loathsome, harmful, and pathetic The hearers, on the other hand, were entitled to be treated with dignity, and received utterly no instrumental benefit from the speech Why, then, did the speakers win all four cases so easily?one possible explanation is that, apart from the speaker, none of the other residents of Mr Madison's neighborhood have fully developed judicial personalities on those relatively rare occasions where a hearer makes a featured appearance in a Supreme Court First Amendment opinion, it is usually to be lectured on how important it is to have a thick skin,15 or to be conscripted as a First Amendment standin for a speaker who can not make it on its own …

Touch DNA and Chemical Analysis of Skin Trace Evidence: Protecting Privacy While Advancing Investigations

Abstract: Forensic science transforms criminal investigations by resolving previously unsolvable cases and bringing an increased sense of justice to communities. This application of scientific disciplines to legal questions aids investigators in solving crimes. While many sciences can be utilized — such as physics (pattern evidence), chemistry (toxicology), or biology (cause of death), to name a few — two aspects of scientific advancement have played an outsized role in responding to crime. Trace evidence analysis — specifically, deoxyribonucleic acid (DNA) analysis — is an essential component to an effective and accurate criminal justice system. DNA evidence has emerged as a powerful tool to identify perpetrators of unspeakable crimes and to exonerate innocent individuals accused of similarly heinous actions. However, a different method of examining traditional trace evidence has quietly grown somewhat unnoticed. The emergence of so-called “touch-DNA” evidence and chemical analysis of skin traces represents powerful, novel uses of trace evidence that have significant implications for personal privacy. Furthermore, these abilities are developing within an outdated DNA jurisprudence that is wholly inadequate to protect individual privacy and facilitate the legitimate government interest in accurately investigating crime. Just as beeper and antiquated cellphone jurisprudence was an inadequate framework for the issues arising from smartphones or GPS tracking, DNA jurisprudence has failed to keep pace with modern uses of DNA. This Article addresses touch DNA, chemical analysis of skin traces, and their implications for crime scene investigation, arguing that changes in how trace evidence is analyzed require alterations in the law’s approach to its use. Discussing the history of traditional DNA analysis, the article also examines the emergence of touch DNA and related technologies and how they differ from traditional DNA analysis. It analyzes new risks of these new technologies, specifically to suspects and victims of crime. Finally, it proposes a legal framework to address these privacy threats — drawing a distinction between the collection of DNA and cellular materials for identification purposes and a subsequent examination of these materials for other information about the source. The framework adopted by the Supreme Court for cell phone examination in Riley v. California, required a more specific level of suspicion to examine the contents of a cell phone than to obtain it incident to arrest. This Article advocates utilizing this framework in the collection and examination of the even more personal information contained within DNA and cellular evidence. Specifically, it distinguishes between collecting the evidence and routinely testing it for identity and the more invasive examination of the evidence for additional personal information about the source. Before searching this deeply into this evidence for any information beyond identification, the government must establish a higher level of suspicion and obtain a warrant.

The Fourth Amendment Disclosure Doctrines

Abstract: The third party and public disclosure doctrines (together the “disclosure doctrines”) are long standing hurdles to Fourth Amendment protection. These doctrines have become increasingly relevant to assessing the government’s use of recent technologies such as data mining, drone surveillance, and cell site location data. It is surprising then that both the Supreme Court and scholars, at times, have associated them together as expressing one principle. In turns out that each relies on unique foundational triggers and does not stand or fall with the other. This is the first article to tackle this issue and provide a comprehensive topology for analyzing the respective contours of each doctrine. This subject is particularly timely given the Court’s recent decision to hear a case involving the reach of the Fourth Amendment to cell site location data.

Notice and Standing in the Fourth Amendment: Searches of Personal Data

Abstract: In at least two recent cases, courts have rejected service providers’ capacity to raise Fourth Amendment claims on behalf of their customers. These holdings rely on longstanding Supreme Court doctrine establishing a general rule against third parties asserting the Fourth Amendment rights of others. However, there is a key difference between these two recent cases and those cases on which the doctrine rests. The relevant Supreme Court doctrine stems from situations in which someone could take action to raise the Fourth Amendment claim, even if the particular thirdparty litigant could not. In the situations presented by the recent cases, by contrast, the service provider was the only source of possible challenge—at least for some meaningful period of time. In both cases, the searches were done pursuant to a warrant issued in accordance with the Stored Communications Act (SCA). Because the government proceeded by warrant, the government was not required to give notice to the target of the search. The warrants were also accompanied by no-notice orders, meaning that the provider was barred from telling anyone, including the target of the search, that his or her data was being sought by the government—in some cases indefinitely. The use of such no-notice warrants served on third-party providers is an increasingly common investigatory tool, wrought by the changes in the way personal information is stored and managed in the digital age. Its use presents a significant shift in how investigations are carried out. It relies on a third-party intermediary between the police and the citizenry to gather information about persons of interest. It makes the searches that are occurring much more indirect and less visible. And it means that individuals are a lot less likely to know—and thus have an opportunity to object—if and when their personal information is being sought and collected by law enforcement officials. This Article examines what has changed; why it matters; and * Associate Professor, American University Washington College of Law. Special thanks to Jeff Bellin, Rebecca Green, Richard Re, Paul Ohm, the faculty at William & Mary Law School, and the participants at the March 2017 William & Mary Bill of Rights Journal Symposium, Big Data, National Security, and the Fourth Amendment, for their thoughtful comments and feedback.

Striding out of Babel: Originalism, Its Critics, and the Promise of Our American Constitution

Abstract: This Article pursues a therapeutic approach to end the debate over constitutional originalism. For almost fifty years that debate has wrestled with the question whether constitutional interpretations and decisions should look to the original intentions, expectations, and understandings with respect to the constitutional text, and if not, what. Building on a series of prior articles exploring the jurisprudential foundations of the debate, this Article characterizes the debate over originalism as pathological. The Article begins by describing what a constitutional therapy is. The debate about originalism has been and remains sterile and unproductive, and the lack of progress argues powerfully for the conclusion that a successful resolution of the debate is not likely to be achieved by any of the protagonists. Instead, the debate should be abandoned. At a conceptual level, there are a variety of sources for the pathology of the debate, but a series of tacit ontological and other jurisprudential assumptions play a central role. The Article explains why neither side in the debate over constitutional originalism can hope to prevail. Any hope to revive or reconstruct the debate seems at once implausible and unlikely to deliver any significant doctrinal or methodological payoff to our American constitutional law. If we articulate the tacit premises of the debate, we can recognize why the debate over originalism reflects more confusion than substantive disagreements. As we do so, we begin to see the way forward beyond the debate. Making the source of the debate’s disagreements appear confused rather than important also provides ample motivation to move on. This Article concludes by arguing that such a postdebate constitutional discourse and practice is indeed possible, as well as desirable.

Commercial Speech and the Perils of Parity

Abstract: Existing First Amendment doctrine has for forty years evaluated regulations of commercial advertising under a so-called intermediate standard of review1 Unlike in earlier times,2 much commercial advertising is now treated as speech subject to some protection under the First Amendment,3 but the degree of protection is less than that given to the political, ideological, and literary speech long understood to lie at the core of the First AmendmentAlthough some commentators (including this one4) lament the inclusion of commercial advertising within the ambit of the First Amendment at all,5 it is too late in the day to expect a reversal of a doctrinal trend of increasing vintage More interesting, perhaps, is the argument from the other direction, with some Supreme Court Justices and some commentators maintaining that there is no good reason to give now-covered commercial advertising a lesser degree of protection than that long available to core First Amendment communication6 The goal of this Article is to address that claim, not so much by objecting to it, but by examining the implications of parity-the consequences of granting to commercial advertising a degree of protection that is commensurate with (or at least close to) the strict (and thus not intermediate) scrutiny available to much of the speech covered by the First AmendmentI HOW WE GOT HEREIt is doubtful that any likely readers of this Article will be unaware of the recent and not-so-recent history of commercial advertising7 and the First Amendment Accordingly, little point would be served by still another recounting of that history Nevertheless, a very brief summary will ensure that we all are on the same page and will set the stage for what is to comeThe prehistory of the commercial speech doctrine starts in 1942, with Valentine v Chrestensen,8 the case in which a commercial (but not corporate, it should be noted9) distributor of advertising handbills claimed that the First Amendment protected his business advertising practices against regulation10 In briefly rejecting his claim, the supreme Court made it clear that not only were his handbills not protected by the First Amendment, but also that the First Amendment was not even relevant to the question11 In my preferred and more modern terminology, commercial advertising was treated as entirely outside the coverage of the First Amendment,12 and thus regulable under non-First Amendment-influenced rational basis standards13Some years later, commentators began to bridle at this approach to commercial advertising,14 with Martin Redish's 1971 article in the George Washington Law Review15 properly considered a major landmark in this trend Redish, following and followed by others,16 insisted that there was no good reason to treat commercial advertising as a lesser form of speech under the First Amendment and that the time had come to reconsider Valentine11 Shortly thereafter, Justice Stewart, dissenting in Pittsburgh Press Co v Pittsburgh Commission on Human Relations,18 argued on freedom of the press grounds that regulation of the advertising section of the newspaper was protected against what might otherwise be permissible antidiscrimination legislation19 And two years later, the Court held in Bigelow v Virginia20 that a state restriction on advertising for abortion services was impermissible under the Constitution21 The Court announced in clear terms that the presence of speech in a commercial advertisement was not sufficient to deprive it of First Amendment protection,22 but it was unclear whether this was a pervasive holding about the First Amendment or whether the Court's conclusion and language were heavily influenced by the abortion context, the latter being a reasonable inference in light of the fact that Bigelow came only two years after Roe v Wade23The intersection of scholarly commentary and increasingly relevant case law thus set the stage for a more frontal assault on commercial speech's First Amendment exile, an assault that reached fruition in Virginia State Board of Pharmacy v …

“Time Enough” for Scrutiny: The Second Amendment, Mental Health, and the Case for Intermediate Scrutiny

Abstract: IntroductionWhen analyzing challenges to laws that burden a constitutional right, courts generally adopt some analytical framework for determining whether the burden the law places on exercising that right is appropriate. How are lower courts to decide which analytical framework to apply when the Supreme court has not established one for a particular doctrinal area? This is the current situation in contemporary Second Amendment jurisprudence. Having interpreted the Second Amendment to protect an individual's right to keep and bear arms in the home for self-defense in District of Columbia v. Heller,1 the Supreme Court confirmed a constitutional right without providing an answer to the framework question.2Specifically, the Court did not apply any of the traditional levels of judicial scrutiny to the law at issue in Heller.3 Instead, the Court cautioned against deciding a question it felt was unnecessary on the facts before it.4 "[N]othing" in the Court's opinion, however, "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill."5 The Court had little to say about these "presumptively lawful" prohibitions, except that "there will be time enough to expound upon the historical justifications for [them] . . . if and when those exceptions come before us."6 No such challenges have since been decided by the Court. The Courts of Appeals, however, have dealt with many of these exceptions, and their approaches are crucial to answering the scrutiny question.7Since Heller, the Courts of Appeals have, by a large majority, adopted some form of intermediate scrutiny in most Second Amendment challenges.8 In 2014, however, the Sixth Circuit considered a challenge to a federal law banning gun possession for any individual who previously had been committed to a mental institution, or who had been adjudicated as a mental defective.9 In Tyler v. Hillsdale County Sheriff's Department (Tyler I ),10 a panel of the Sixth Circuit became the first Court of Appeals to apply strict scrutiny to a Second Amendment challenge.11 The Sixth Circuit panel presented several arguments for the general application of strict scrutiny over intermediate scrutiny in Second Amendment cases.12 Moreover, Tyler I was the first case in which a federal Court of Appeals has heard a challenge to a law restricting gun possession based on mental heath concerns.13Less than six months after the Tyler I decision, the Sixth Circuit vacated the opinion and granted a rehearing en banc.14 Sitting en banc, the court in Tyler v. Hillsdale County Sheriff's Department (Tyler II)15 rejected the previous panel's conclusion that strict scrutiny applies in Second Amendment challenges to laws restricting gun possession based on mental health concerns.16 The Sixth Circuit thus fell in line with many of the other circuits in applying intermediate scrutiny in such cases.17 Although the Sixth Circuit no longer splits with the other circuits on the scrutiny question, the general discussion of scrutiny in Tyler I and analysis of the arguments in favor of strict scrutiny for Second Amendment challenges is instructive. The Tyler I court's opinion provided a more in-depth discussion of the scrutiny question than any other earlier circuit court's opinion, marshaling many different arguments in favor of strict scrutiny over intermediate scrutiny.18 Importantly, the panel's arguments were not dependent upon the specific facts in Tyler I, but, rather, if sound, would support the adoption of strict scrutiny across many types of Second Amendment challenges.19 Although the Sixth Circuit, sitting en banc, ultimately rejected the application of strict scrutiny in the case of a law burdening the Second Amendment right due to mental health concerns,20 because the Supreme Court has not yet decided the scrutiny question, the issue remains open.This Note considers the question of which analytical framework, or level of judicial scrutiny, is applicable to Second Amendment challenges. …

Excessively Unconstitutional: Civil Asset Forfeiture and the Excessive Fines Clause in Virginia

Abstract: IntroductionImagine that you are a small business owner in Virginia with the opportunity to buy equipment for your business from an independent seller. Y ou decide to bring money in cash to purchase the equipment because you think it will give you a better negotiating position. As you drive to the appointment with the seller, you are pulled over by a police officer for a minor traffic violation. During this traffic stop, the police officer searches your car and asks you to disclose any weapons, illegal substances, or large amounts of cash you may have on your person or in your vehicle. You disclose to the officer that you have a large amount of cash because you are headed to buy business equipment. The officer then arrests you and seizes the money, alleging that it is connected to drug trafficking.While this scenario may seem far-fetched, it happened to Mandrel Stuart on Interstate 66 in Virginia.1 Stuart owned a barbeque restaurant in Staunton, Virginia and was headed to buy restaurant equipment in Northern Virginia when he was stopped by a Fairfax County officer for having a video screen in his vehicle.2 The officer proceeded to search the car and found $17,000 in cash as well as a few "green" "flakes," which the officer assumed was marijuana.3 Stuart was arrested and the $17,000 was seized through an action of civil asset forfeiture.4 Stuart was eventually acquitted of all criminal charges resulting from the arrest, but it took over a year and an arduous legal process5 to get the $17,000 back.6In fact, Stuart was lucky to have any of his seized money returned. In Virginia, the $17,000 could be seized and forfeited to the state even if Stuart was acquitted by a jury of any crime.7 Even though having property forfeited to the state when a jury has found insufficient evidence to prove a crime was committed may seem like an excessive fine, in Virginia, the Commonwealth only has to prove that a crime was committed "by clear and convincing evidence" in order to seize and forfeit property.8How can police take a person's property without first proving a crime was committed, especially in a state and nation that guarantees that no excessive fine will be levied against its citizens? Simple. Civil asset forfeiture laws "allow[ ] police to seize-and then keep or sell-any property they allege is involved in a crime."9 Because police agencies benefit financially from civil forfeitures, forfeiture is pursued aggressively at both the state and federal level.10 Further, seized assets may be "thousands of times more valuable than contraband sold by defendants^]"11 which provides an incentive for police to seize high value chattels. With many state and local police agencies facing budget cuts, forfeiture proceeds are used by these agencies to offset lost funding.12 One survey of police departments reported that forty percent of police executives believe civil forfeiture funds are "necessary as a budget supplement."13Today, the majority of asset forfeitures occur through civil asset forfeiture.14 In virginia, civil forfeitures are a powerful law enforcement tool because they require a lower standard of proof than criminal forfeitures,15 may be brought and decided prior to any criminal trial,16 and Virginia courts have not established an Excessive Fines Test that adequately protects citizens.17 Further, police may seize essentially any type of property, as long as the property can be connected, however tenuously, to a crime.18Civil forfeiture has steadily increased in Virginia,19 which in turn has increased public concern regarding the legitimacy of the practice.20 Multiple constitutional challenges can be made against the practice of civil asset forfeiture and substantial literature has been devoted to the topic. However, the Supreme Court "has rebuffed most constitutional challenges by finding that the particular constitutional right either does not apply in a civil proceeding, or that it cannot be asserted by the property owner, who is not officially a party to the proceeding. …

In Praise of Legal Scholarship

Abstract: INTRODUCTIONIt is commonplace to hear legal scholarship derided as out of touch, too theoretical, low quality, unread, and of little practical impact.1 Chief Justice John Roberts reportedly asserted that he seldom reads or relies on law review articles.2Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I'm sure was of great interest to the academic that wrote it, but isn't of much help to the bar.3Judge Harry Edwards is likewise famously critical of legal scholarship. He has written a number of law review articles criticizing legal scholarship.4 In these articles, Judge Edwards claims that legal scholarship does not address the concerns of the profession because it has "little relevance to concrete issues, or addresses concrete issues in a wholly theoretical manner."5 Perhaps most curiously, this critique is one that academics themselves seem all too willing to embrace.6 Their willingness to do so may spring from a desire to do something, anything, (or at least to be seen as doing something) to address the return on the investment problem in legal education-something which became a crisis in the wake of the financial collapse of 2008 because law firm layoffs and declines in hiring, which were part of the fallout from that collapse, severely contracted the job market. That meant many graduates with an expensive law degree had no way to service the debt accumulated in acquiring the degree. Law schools were roundly, and in some cases justly, criticized for their marketing and admissions practices that perhaps oversold law as a career or did not do enough to discourage attendance amongst those who would not be able to find a job that paid enough to service their debt.The criticisms of legal education (of which criticism of legal scholarship was only a small part), combined with soaring tuition and poor job prospects, had a catastrophic effect on law school enrollment.7 Thus, many of these criticisms of scholarship are taking place in that larger context, one in which legal education is treated like a product and law students like consumers.However, most of these critiques, like Judge Edwards's own, long predate the 2008 financial collapse and the resulting decline in law school enrollments.8 So, the desire to respond to that crisis cannot be the whole answer for why even academics are so critical of legal scholarship. Nevertheless, the crisis has given new bite to the critique that legal scholarship is rarely relevant to practice, along with the newer claim that it is expensive to boot-far too expensive to justify at all but the richest, most prestigious institutions.9This is a common criticism-that everyone is trying too hard to emulate Harvard and Y ale.10 Faculty at lower-ranked institutions are advised to leave the production of scholarship to those at the top-those with the intellectual firepower and financial resources to be able to indulge in an enterprise of such uncertain utility.11 Similar critiques are launched in the press.12In this Essay, I would like to mount a qualified defense of legal scholarship as an enterprise. I say "qualified" because it is very difficult to draw definite, causal connections about the influence of scholarship on the law and society at large; so I cannot say any of the evidence I review is conclusive or might not have another reading.13 It is an impressionistic, not exhaustive, inquiry. But I think, taken altogether, these observations offer cogent reasons to reject the blanket dismissals of legal scholarship as worthless and irrelevant, even as an instrumental matter.14It may be just as hard to evaluate the merits or "utility" of a law review article as it is to evaluate the merits of a piece of art or a work of literature. As Judge Posner has said, "Scholarship . . . is a high-risk, low-return activity. …

Of Prairie Dogs and Congressmen: Defining the Regulated Activity and Why it Matters for rhe Commerce Clause Substantial Effect Test

Abstract: INTRODUCTION1122I People for the Ethical Treatment of Property Owners v United States Fish & Wildlife Service1124A The Prairie Dog Invasion1124B Current Litigation1125II Commerce Clause Development1127A Development of Interstate Versus Intrastate Commerce1127B The Substantial Effect Test1128C Searching for Limits1129III Applying the Commerce Clause to Environmental Regulation THROUGH THE ESA1131A Legal Foundation for the ESA1131B Application of the Act to Various Species1132C Connecting the Endangered Species Act to Other Commerce Clause Decisions1133IV Three Methods of Applying the Substantial Effect Test to Intrastate Species1134A The Regulation Itself as the Activity in Question11341 NAHB v Babbitt11342 Alabama-Tombigbee Rivers Coalition v Kempthorne11363 San Luis & Delta-Mendota Water Authority v Salazar11374 Questioning the ESA as a Whole in the Prairie Dog Case1138B The Specific Regulated Act as the Activity in Question11381 GDFRealty Investments, Ltd v Norton11392 Rancho Viejo, LLC v Norton11403 Focusing on the Taking of Prairie Dogs as the Activity in Question11414Focusing on the Damage Caused by the Prairie Dogs that Continues to Occur Because of the Regulation Against Taking the Rodents 1143CThe Regulated Animal as an Article of Commerce11451 Gibbs v Babbit11452 Utah Prairie Dogs as Articles of Commerce1146V Setting a Clear Standard for the Substantial Effect Test in Order to Preserve Legitimate Federal and State Regulatory Power 1147A Using the Specific Regulated Act as the Standard for the Substantial Effect Test Defines a Logical Stopping Point1148B Implications of a Clear Standard and Related Environmental Concerns1149Conclusion1150IntroductionThe Commerce Clause is one of the most cited constitutional provisions and has been applied to a myriad of state activities to justify federal government regulation1 it seems nearly impossible to locate a practical limit to the definition of interstate commerce,2 especially with the interconnectedness of our modern economy One application of Commerce Clause regulatory power, the Endangered Species Act (ESA or the Act), has been the subject of great controversy3 Opponents of the Act's far-reaching applications have introduced various bills and amendments to counteract the federal regulation, including the ESA Settlement Reform Act being considered by Senate and House subcommittees as of November 20164 Continuing the struggle between the federal government and private property owners, an organization representing private property owners in the state of utah is making a strong argument for limiting federal regulation when it comes to prairie dogs that reside only within the state5 An intrastate species challenge has yet to make its way to the Supreme Court, but previous cases challenging the constitutionality of the ESA have paved the way for such a challenge to occur6 A few pesky prairie rodents provide the perfect opportunity for a Supreme Court clarification of the limits of the ESA and to create a logical stopping point for interstate commerce regulatory powerThe Utah prairie rodent problem provides an opportunity to define a stopping point by clarifying the appropriate target of the Substantial Effect Test This test is used to determine whether the activity in question has a strong enough connection to interstate commerce to make federal regulation constitutionally valid7 This seemingly simple determination often becomes complex and highly controversial when the federal regulation in question involves a "non-commercial" focus such as the protection of endangered species8 When the regulation under judicial review involves prohibitions stemming from the ESA, the Substantial Effect Test could focus on the regulatory scheme as a whole, the specific regulated act, or the animal itself as an object in commerce …