Confronting Big Data: Applying the Confrontation Clause to Government Big Data Collection

When government investigators request data from companies such as Google, they obtain data on targeted individuals with a guarantee that the data has been collected, stored, and analyzed properly. These guarantees constitute a testimonial statement under the Confrontation Clause. Similar to lab analysts who submit test results of cocaine samples or blood alcohol levels, this Note argues that analysts involved with the collection, storage, and analysis of big data must be available for confrontation under the Sixth Amendment

“Recommend . . . Measures”: A Textualist Reformulation Of The Major Questions Doctrine

Following Biden v. Nebraska, defenders of the major questions doctrine (which requires administrative agencies to identify “clear congressional authorization” to regulate “major” issues) can be categorized as falling within one of two camps. The first camp includes Justices Gorsuch and Alito, who view the major questions doctrine as a substantive canon. The second camp includes Justice Barrett, who explained in Nebraska that she is “wary” of adopting new substantive canons, and indicated that she considers the major questions doctrine to be a linguistic canon. Interestingly, both camps have relied on an influential scholar to advance their positions: then Professor (now Justice) Barrett. This Article will therefore also work within Justice Barrett’s scholarly framework, but will do so to make two points. First, that textualists have reason to object to both the substantive and linguistic conceptions of the major questions doctrine that are currently on offer. And second, that the major questions doctrine can be reformulated into a new substantive canon that textualists can embrace

Against Algorithmic Auer Deference

Smart contracts (i.e., electronic agreements written in computer code) can resolve contractual disputes instantaneously, without resorting to court. For workers and consumers—whose lack of bargaining power often requires them to accept pre-drafted contracts on a take-it-or-leave-it basis—reducing the role that courts play in resolving contractual disputes can be problematic. While courts could deploy traditional interpretive doctrines (e.g., contra proferentem) to interpret vague contract language against the drafter’s interests, smart contracts can be programmed to interpret contract language in the drafting party’s favor. Because the drafting party knows that they will have the ability to interpret vague language in their own favor (rather than try their luck with a court’s neutral interpretation), the drafting party has the incentive to use vague smart contract language that the drafting party can later interpret to advance its own future interests, which might change over time.The incentive to use vague terms that the drafting party can later interpret to promote its own future interests is not unique to the futuristic world of smart contracts. To the contrary, administrative law has long grappled with a similar incentive presented to government agencies empowered by Auer v. Robbins to interpret the regulations they write. Under Auer, a court reviewing a regulation’s text would often defer to the agency’s interpretation of that language—even though the regulated entity disagreed with the agency’s interpretation. A traditional critique of that so-called “Auer deference” was that, because an agency knew that courts would favor the agency’s own interpretation, the agency was incentivized to draft regulations with vague terms that the agency could later interpret to fit its own interests. This left regulated entities with less notice as to what their legal obligations might be in the future. But administrative law has developed to correct such incentives by requiring, in Kisor v. Wiklie, that courts play a more central role in interpreting regulatory text (rather than quickly deferring to an agency’s self-serving interpretation). This Article applies the lessons offered by administrative law to the world of smart contracts.Administrative law’s lessons apply to the world of smart contracts because companies can regulate private behavior through smart contracts, similar to how agencies regulate private behavior through regulations. Thus, much like administrative law has developed to ensure that courts do not defer automatically to an agency’s self-serving interpretation, state governments should protect workers and consumers by limiting companies’ abilities to interpret algorithmically their own smart contracts without judicial oversight

Data Privacy and Inmate Recidivism

Private companies are awarded contracts to provide Internet technologies within jails and prisons. These correctional contractors often argue that their services can reduce recidivism rates by, for example, providing inmates with access to video messaging services where inmates can communicate with loved ones who are otherwise unable to travel to communicate in person. A close examination of the privacy policies offered by correctional contractors, however, reveals how efforts to reduce recidivism rates are undermined.As this Essay will explain, correctional contractors collect sensitive data about inmates and the loved ones with whom they communicate. If this data is stolen or sold it can result in substantial harm. The privacy policies currently offered by correctional contractors do not protect against these problems. This Essay therefore calls on the Federal Communications Commission (“FCC”) to correct such harms

Towards Nondelegation Doctrines

When discussing the nondelegation doctrine, courts and scholars frequently refer to Congress’ “legislative power.” The Constitution, however, speaks of no such thing. Instead, the Constitution vests a wide variety of “legislative powers” (plural) in Congress, including the powers to “regulate commerce,” “declare war,” “coin money,” and “constitute tribunals.” Shoehorning Congress’ diverse array of powers into a one-size-fits-all nondelegation doctrine has necessitated the development of the vaguely worded “intelligible principle” test. Unsurprisingly, that malleable test has failed to produce a judicially manageable standard. In response, this Article proposes that the nondelegation doctrine be transformed into a series of nondelegation doctrines, each corresponding to one of Congress’ distinct powers. Adopting such an approach can lessen the risk that reviving the nondelegation principle – a task the current Supreme Court has expressed an interest in taking on – will result in a complete reworking of the modern administrative state

Major Problems with Major Questions

This July in West Virginia v. EPA, the Supreme Court formally recognized the “major questions doctrine.” That doctrine, which can be traced to a 1986 law review article published by then-Judge Stephen Breyer, calls on courts to consider a legal question’s “political importance” when interpreting statutes. The major questions doctrine is a product of legal pragmatism—a theory of statutory interpretation advanced by Justice Breyer which often elevates statutory purpose and consequences over text. The doctrine is inconsistent with textualism—an interpretive theory that emphasizes statutory text, structure, and history to understand a statute as the public originally understood it. The takeaway is clear: textualists should reject Justice Breyer’s major questions doctrine

The Appropriate Appropriations Inquiry

The Supreme Court is set to hear oral argument this fall concerning whether the Consumer Financial Protection Bureau (CFPB) is unconstitutionally self-funded. The question presented in the case asks whether the statute establishing the CFPB’s self-funding scheme, 12 U.S.C. § 5497, “violates the Appropriations Clause.” But that question is incomplete at best, because although the Appropriations Clause requires that “appropriations” be “made by law,” the Appropriations Clause does not itself vest Congress with any authority to make “law” in the first place. Instead, Congress’s authority to make appropriations laws is vested in part by the Necessary and Proper Clause. Thus, the “appropriate” appropriations inquiry asks not whether Section 5497 violates the Appropriations Clause, but instead whether Section 5497 violates one of Congress’s appropriations powers. And deciding that requires asking whether Section 5497 constitutes a “necessary and proper” means of “carrying into execution” a constitutionally vested power—which in regards to funding the CFPB, is presumably Congress’s power to “regulate commerce . . . among the several states.” This Essay argues that the Supreme Court should use the upcoming CFPB self-funding case to reorient its appropriations jurisprudence around the specific constitutional text that vests Congress with appropriations authority. Such a reorientation would suggest that, although Congress may empower some entities (such as the post office and national mint) to self-fund themselves through fees, Congress may nonetheless be unable to empower other entities (such as the CFPB) to operate outside of the congressional appropriations process. The difference in constitutionality stems from the different constitutional text (i.e., the different appropriations powers) that Congress must rely on to fund different parts of the federal government

The Limits of the Freedom Act\u27s Amicus Curiae

The federal government’s power to engage in surveillance for national security purposes is extensive. In an effort to reform the current national surveillance regime, scholars have called for, among other things, the creation of a “special advocate” to counter the government’s arguments before the Foreign Intelligence Surveillance Court. Feeling political pressure to improve an ever-unpopular national surveillance regime, lawmakers passed the USA FREEDOM Act (“Freedom Act”). Section 401 of the Freedom Act provides for the creation of an “amicus curiae,” a position that differs from earlier conceptions of a “special advocate” in important respects. This Essay examines those differences, and counsels against conflating the Freedom Act’s amicus curiae with a true special advocate. By doing so, this Essay highlights the need for continued calls for a special advocate

Federalism in the Algorithmic Age

The robots will not be pleased with Frank Pasquale. In New Laws of Robotics, the Brooklyn Law professor outlines two possible futures that can emerge from a growing conflict between human and robotic thought. The first is a future of robotic dominance. In that future, decisions traditionally made by human professionals (e.g., who goes to jail, what medicines are prescribed, and what news gets published) are decided by robots powered by artificially intelligent algorithms. The second future offers robots a less-favored role in the ordering of human affairs. Pasquale earns the displeasure of our would-be robotic overlords by outlining the path to this second future, where human professional judgment is enhanced by (but not replaced with) robotic systems

Administrative Virtues

Administrative law has developed to incorporate insights from two philosophical perspectives: deontology and consequentialism. This Article elucidates administrative law’s reliance on those two perspectives and proposes that administrative law further develop to incorporate insights from a third perspective—virtue ethics—which the legal community has, in large part, ignored. Unlike deontology (which focuses on actions) and consequentialism (which focuses on actions’ consequences), virtue ethics focuses on actors. Thus, to begin incorporating virtue ethics’ insights into administrative law—a task that a wide range of scholars and jurists can embrace—this Article explores how a virtuous agency official might act in accordance with the virtues of prudence, temperance, justice, and courage. A focus on those virtues (known collectively as the “cardinal virtues”) counsels in favor of making important changes to administrative law—including by increasing the opportunities for judicial review of agency action. A focus on the cardinal virtues also offers additional support for existing administrative law doctrine—including the judicial deference courts give to an agency official’s decision to use one regulatory approach rather than another. In short, virtue ethics offers valuable insights that scholars have yet to consider, but which both transform and reinforce our understanding of administrative law in important ways