SelectedWorks @ Widener University Commonwealth Law School
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Let’s Be Reasonable: Thoughts on the Fourth Amendment and Constitutional Interpretation
No full textIt is an honor to be asked to write the foreword for this symposium issue of the Widener Commonwealth Law Review. It is a particular pleasure to be asked to comment on pieces that discuss the Fourth Amendment, for that provision represents our Nation\u27s attempt to balance privacy and security-perhaps the two most fundamental values in any system of ordered liberty. The standards by which the Amendment is to be interpreted, and by which those values of privacy and security are to be achieved, raise equally fundamental concerns about judicial power. It is therefore quite fitting that this issue also discusses judicial behavior and judicial selection-in particular the nomination and confirmation of circuit judges.This collection of articles arises out of a live symposium held at Widener Law Commonwealth on April 5, 2019. That symposium, entitled Search, Seizure and Smartphones: A View of the Fourth Amendment Through Today\u27s Lens, brought together scholars and practitioners who shared their views and experiences concerning the ways in which the Fourth Amendment\u27s protection of the people\u27s right to be secure in their persons, papers, houses, and effects, against unreasonable searches and seizures should apply to the Internet age
Notice and Assent Through Technological Change: The Enduring Relevance of the Work of the ABA Joint Working Group on Electronic Contracting Practices
No full textThis article, prepared for the 75th anniversary volume of The Business Lawyer, reflects on the efforts of the ABA Business Law Section’s Joint Working Group on Electronic Contracting Practices. The Working Group produced two articles in The Business Lawyer in 2001 and 2003 that were designed to give guidance to companies presenting standard-form contract terms electronically. We review the guidance and reflect upon the insightfulness of these two articles on the subject of electronic contracting. Although court decisions were not always consistent with the Working Group’s recommendations, recent cases assess the quality of notice more carefully and critically, reflecting a trend aligned with the guidance of the Working Group, which emphasized the effectiveness, and not just the existence, of notice
Reflections on Jewish and American Disability Law and on The God Who Makes All Things Good
No full textPerhaps, the woman’s outrage was fueled somewhat by being American, by being able to compare our law with respect to people with disabilities to God’s. After all, in America, our laws do not allow discrimination against people who are disabled. We grant them access. We accommodate them. We invite them to work and have value. We call them equal and seek ways to help them emulate the lives of those of us who are not disabled. We allow them to share in our perfection. Or do we? Might one also accuse us, as the woman to Rabbi Yolkut accused God, of rejecting those whom we label in our laws “disabled”? Might one accuse us of rejecting these people as they are, and then seeking to accept them only as we might redefine them? Do we seek to remake these people in our own image when we should be helping them to find God’s perfection for them, helping them to find God’s image uniquely articulated in how He created them
Incorporating an Actual Malice Exception to Section 230 of the Communications Decency Act
No full textIn an initial attempt to shield minors from pornography, Congress enacted the Communications Decency Act (CDA) of 1996. An amendment to the CDA, codified as section 230, originally was designed to encourage web-related defendants to self-regulate by shielding “Good Samaritan” websites from liability. Courts have interpreted the section broadly, creating almost complete civil immunity for interactive computer services (ICS) for the statements of their users—regardless of whether they would have been “publishers or distributors” at common law. Despite the good intentions behind section 230, the broad immunity that it has provided ICSs ultimately prevents holding ICSs accountable for their wrongful behavior: not only defamation, but also conduct such as malicious catfishing.For at least fifteen years, commentators have proposed amending section 230, but, other than one limited exception, Congress has yet to take action. Recent political attention to section 230, however, provides an opportunity for reform, and this essay proposes such a reform. Although two reform proposals have received a lot of attention—the repeal of section 230 and a “notice-and-takedown-procedure”—we have concerns about both.Instead, this essay proposes applying the actual malice standard to torts committed by ICSs in a distributor capacity. Expanding an earlier proposal, we would apply actual malice in all cases against ICSs acting as distributors. Moreover, we would apply the actual malice standard to torts beyond defamation. Thus, if an ICS were engaged in tortious conduct involving knowledge or reckless disregard for the truth, the ICS would be accountable. The actual malice standard holds web-related defendants accountable for egregious harm, while protecting them from overly burdensome liability
Dispossessing Resident Voice: Municipal Receiverships and the Public Trust
No full textThe residents of struggling cities suffer property dispossessions both as individual owners and as municipal residents. Their individual dispossessions are part of a cycle that often begins with industrial decline. In Detroit, for example, more than 100,000 residents have lost their homes to tax foreclosure over a four-year period that bracketed the city’s bankruptcy filing. Falling property values, job losses, and foreclosures affect municipal budgets by reducing tax revenues. As individual dispossessions exacerbate municipal financial crises, residents can also face the loss of municipal property. Struggling cities and towns often sell publicly owned property—from parks to parking systems—to balance municipal budgets.This article discusses the relationship between property dispossessions and proceedings to resolve municipal financial distress, with a focus on another important loss faced by residents of distressed municipalities—the loss of their voice in municipal government. A municipal financial crisis, by itself, has no effect on the property of any individuals who live in the city, and a city’s bankruptcy does not take a city’s assets in the same way that a corporate or personal bankruptcy can take the property of a business or individual. Yet even though creditors cannot force the sale of city-owned assets, the decision to transfer the property may be made by unelected officials appointed by the state government to replace city government in times of financial crisis. This results in another type of collective dispossession—the dispossession of resident voice in local government affairs. This article discusses how insolvency proceedings, including Chapter 9 bankruptcy, can deprive residents of their voice and, in turn, deprive them of the city’s assets that the city holds for them in public trust and proposes some suggestions for states for balancing the need for resident voice with higher-level financial oversight as they determine how to manage the financial distress of their cities
Justice John Paul Stevens: An appreciation
No full textJustice John Paul Stevens will be remembered for the seminal environmental law decisions that he penned, Chevron and Massachusetts v. EPA
Voting Rights and Election Law, Third Edition
No full textThe third edition is the product of a comprehensive review, update, and streamlining of the second. The third edition presents more material more efficiently, and as a result the third edition is both more thorough in its coverage and clearer in its explanations, while being slightly shorter than the second edition. The book\u27s organization has been rethought and adjusted to make the presentation more effective. The materials on the political-question doctrine have been revised to account for the increased attention that has been given to partisan gerrymanding and to the use of independent districting commissions. Material on congressional power to enact the original Voting Rights Act of 1965 has been moved from Chapter 1 to Chapter 3, where it joins the (slimmed-down) coverage of preclearance, which has declined in significance after Shelby County v. Holder. The coverage of third parties and ballot access now joins the term-limits material to form a new Chapter 6 that fully considers states’ power to design, and to control access to, the ballot. The examination of the protection for anonymous speech has been combined with the materials on campaign-finance disclosure rules to form a new Chapter 9 that comprehensively considers the tradeoffs between disclosure and anonymity. The coverage of election administration has been thoroughly redesigned to cover all manner of election-day rules in a single chapter that includes examination of legal questions that have arisen as states have adjusted their election laws to account for the COVID-19 pandemic.This new structure also allows the book to devote attention to the electoral college and to other federal rules that affect the casting and counting of votes, even as elections are administered by state and local officials
You’ve Got (Political) Questions? We’ve Got No Answers
No full textIn Rucho v. Common Cause, the Supreme Court of the United States held that partisan-gerrymandering claims present non-justiciable political questions. The decision seemingly settled a controversy that had existed for decades, during which the Court was simultaneously unwilling to declare partisan-gerrymandering claims non-justiciable and unable to agree on a judicially manageable standard for adjudicating those claims. In Rucho, for the first time, a five-Justice majority definitively concluded that there are no judicially manageable standards to determine the constitutionality of partisan gerrymanders, and therefore held that federal courts lacked jurisdiction to hear cases raising such claims.Although the Court correctly determined that the partisan-gerrymandering claims should be dismissed, the Court should not have based its decision on the political-question doctrine. Rather, the Court should have held simply that the Constitution does not contain a right against excessive partisanship in districting. Rucho should have been dismissed for failure to state a claim on which relief could be granted, rather than for lack of jurisdiction. Resting the decision on the political-question doctrine has led some to suggest that state courts (which are not bound by the Article III case-or-controversy limitations on federal-court jurisdiction) can reach the merits of partisan-gerrymandering claims and hold districting schemes that give too much of an advantage to one party unconstitutional.My thesis, however, is not simply that the Court should have issued a broader holding than it did. Rather, my thesis is that the Court issued a broader holding than it acknowledged—that what appeared to be a political-question holding was in reality a holding on the merits. Stated differently, the Court’s application of the political-question doctrine made it indistinguishable from an analysis of the merits.Rucho did not hold (in fact, the Court could not have held) that all possible standards for deciding partisan-gerrymandering claims would be unmanageable by the judiciary. In fact, the Court itself suggested that standards contained in state constitutions were judicially manageable. Rather, the Court’s holding was that the Federal Constitution contained no judicially manageable standards for adjudicating partisan-gerrymandering claims, and as a result there was no jurisdiction