The Coming Boom in Computer Loads

Computers and other electronic equipment now consume as much electricity as electric steel furnaces, and their growth shows no signs of slowing. Utilities are active participants in the computer revolution. Northeast Utilities, for example, reports that 20% of electricity use in a typical new office building in its service area goes to computers. Given the expected growth in computers and computer loads, this technology deserves greater attention from utility planners and other energy analysts. It is shown that the commercial sector has been the largest contributor to kilowatt-hour (kwh) sales growth and that new uses within the commercial sector have accounted for the biggest portion of this growth. Confirming this conclusion are a 4-year Department of Energy-funded study of the Park Plaza Building office tower and a 1985 study of 181 office buildings by Northwest Utilities. A prospective study suggests that computers could account for as much as 150 billion kwh by the early 1990s

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

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

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