“Advice and Consent” In the Appointments Clause: From Another Historical Perspective

This Essay, a response to Russell L. Weaver\u27s symposium contribution, Advice and Consent in Historical Perspective, first explores the Appointments Clause’s antecedents in the Age of Enlightenment and its emergence in the Constitutional Convention in 1787, showing how its sturdy separation-of-powers foundation was built. In Part II, the Essay focuses on the historical realities of the Clause’s two-branch process, especially how the operability of two political bodies naturally yields results consonant with the etiquette and political sensibilities of the day. Then, in Part III, it offers several suggestions on how to cabin the potentially untrammeled discretion of the Senate in responding to presidential nominations

Riley v. California and the Stickiness Principle

In Fourth Amendment decisions, different concepts, facts and assumptions about reality are often tethered together by vocabulary and fact, creating a ‘Stickiness Principle.’ In particular, form and function historically were considered indistinguishable, not as separate factors. For example, “containers” carried things, “watches” told time, and “phones” were used to make voice calls. Advancing technology, though, began to fracture this identity and the broader Stickiness Principle. In June 2014, Riley v. California and its companion case, United States v. Wurie, offered the Supreme Court an opportunity to begin untethering form and function and dismantling the Stickiness Principle. Riley presented the question of whether cell phone searches incident to a lawful arrest were constitutional. The Court, which had clung to pre-digital concepts such as physical trespass well into the twenty-first century, appeared ready to explore how technology is reshaping historically understood conceptions of privacy. From a broader perspective, the case offers an initial step in reconciling pre-digital rules based on outdated spatial conceptions of physical things with the changing realities of a technology driven world

The Health Care Proxy and the Narrative of Death

This article is divided into three sections. After this introduction, section II features a brief history of the narrative of death, explores the role of heroism in the death narrative, described the miracles of modern medicine, and analyzes some of the resulting adverse transformations wrought by the advances. The transformations include the unrealistic expectations of longevity and obsession with youthfulness, the removal of death from the personal realm, and the change in the nature of death. Section III examines the legal apparatus erected to meet the issues created by the medical advances, including the redefinition of death, and Constitutional, common law, and legislative enactments. The legislative response includes advance directives such as living wills and health care proxies. Section IV examines the reasons for the disuse of the health care proxy. Section V offers a proposal to increase the effectiveness of the health care proxy and the legal apparatus in general. Specifically, this section proposes a modification of the prevailing narrative of death to promote greater acceptance of death as a part of the life cycle

Interest Convergence and the Role of Citizens as Defenders of Privacy

[extract] In February of 2016, the United States Government asked a federal court to order Apple, Inc. to create software that would enable the government to bypass a security feature on the cell phone of one of Syed Farook, one of the killers who went on a shooting rampage in San Bernardino, California, in December of 2015.Apple versus the United States government, including agencies, such as the FBI, the NSA, and the Attorney General, offers unlikely adversaries. Until Apple, Inc., began encrypting the software in its cell phones, government access to phone transmissions was relatively easy to obtain. But the adoption of “technological architectures that inhibit the government’s ability to obtain access to communications, even in circumstances that satisfy the Fourth Amendment’s warrant requirements,” created this stand-off, and the Government’s particular fear of “going dark,” where the Government would have no information about communications, has exacerbated it. Perhaps more importantly, until several years ago, there were few incentives by private companies to stand on the side of privacy protection. Companies routinely acquired and aggregated user information. Companies like Google, Axiom, AT&T, Verizon, Facebook and others would come by user information naturally. That information was valuable. Until recently, there was no incentive to protect or maximize privacy. Now, private companies have an incentive to protect privacy. Whether the incentive is pecuniary, with privacy now a brand, or moral or political, many of the larger companies are aligning with Apple in its fight against the government. This paper suggests the alignment may be explained in large part to interest convergence. The late Professor Derrick Bell advanced this theory as an explanation for societal change in segregation after WWII, helping to explain Brown v. Board of Education as a shift favoring the majority Whites as well as the minority African-Americans. This paper further argues that interest convergence can be utilized to promote privacy for the average citizen, while still allowing the government to fight crime effectively. The means creating settled expectations about how companies will assist governments in crime interdiction, labeling – like food ingredients – what companies do with the information they receive and how they approach personal privacy. Interest convergence will lead to gradations and distinctive types of privacy. Gradations can include limited disclosures of information, and archetypes can include informational, locational and structural privacy. Above all, because the advancing technologies will keep advancing, the government will have to work with companies or by itself to adapt or new technological architectures. Citizens will rely more and more on education and favorable alignments with companies. Reliance on the Fourth Amendment, unless the ‘third-party rule’ is significantly adapted to the 21st century, will continue to offer little support.

I Spy: The New Self-Cybersurveillance and the Internet of Things

Prior to the digital age, surveillance generally meant a government agent or private investigator engaged in a stakeout or observation detail that involved physical work, expense, and time. The digital age changed surveillance fundamentally. Today, we not only generate mountains of data for others, we also effectively surveil ourselves through digitally-connected, multifunctional smart devices, collectively described as the “Internet of Things.” Cybersurveillance accessed by the government, even when started as self-surveillance, raises complex and uncertain legal issues, especially when related to the Constitution. In United States v. Kyllo, the Supreme Court was reticent to allow government agents to use technology that went through the walls of homes, spying on people within without a warrant under the Fourth Amendment. Current technologies allow the police to do that and more, especially when all of the data is pieced together and analyzed in a personal mosaic. The implications are profound. Is there anything left of the public/private distinction? Does the invisibility of data transfer undermine the separation of powers and the ability to effectively check and balance the Executive branch’s spying operations? This paper examines the constitutional implications of the Internet of Things, arguing that unless models of consent and privacy are changed, outdated legal rules will fail to protect the individual from the state in fundamental ways