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Decoding Nondelegation after Gundy: What the Experience in State Courts Tells Us about What to Expect When We\u27re Expecting
No full textThe nondelegation doctrine theoretically limits Congress’s ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the U.S. Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court’s longstanding “intelligible principle” standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the dissent in Gundy, drawing a line between policy discretion, which cannot be delegated, and authority to fill up details or find facts triggering policies, which can be. Whether observers’ view of the prospect of Court-imposed limits on delegation is apocalyptic or euphoric, virtually everyone expects such limits to be highly consequential.
While these opinions about the nondelegation doctrine are understandable, they are ultimately speculative. This Article offers a more data-driven evaluation of what implementation of the Gundy dissent’s line drawing would portend for administrative law. Using the underexamined laboratory of the nondelegation doctrine in the states, where the doctrine has always had more life than at the federal level, this Article shows that states that adhere closely to the lines drawn by the Gundy dissent are no more or less likely to invalidate statutes passed by state legislatures than states that adhere to the intelligible principle formulation. The lack of a relationship between doctrinal formulation and outcomes suggests we will only know whether a revolution is afoot based on what the Supreme Court actually does over a series of cases, not on what it says it is going to do. Moreover, the research findings suggest significant limitations on the ability of the Gundy dissent’s approach to provide any ex ante guidance to the lower courts, or even future Supreme Courts, about what the nondelegation doctrine prohibits—an observation that suggests significant logistical and institutional problems inherent in the entire project of resuscitating the doctrine
Drug Supervision
No full textCritics of harsh drug sentencing laws in the United States typically focus on long prison sentences. But the American criminal justice system also inflicts a significant volume of drug-related punishment through community supervision (probation, parole, and supervised release). Over one million people are under supervision due to a drug conviction, and drug activity is among the most common reasons for violations. In an age of “mass supervision,” community supervision is a major form of drug sentencing and drug policy.In this Article, I analyze the federal system of supervised release as a form of drug policy. Congress created supervised release as a program of transitional support for former prisoners, yet the system has instead evolved into a drug-control network focused on monitoring, restricting, and punishing drug activity. In particular, the mandatory revocation provision in 18 U.S.C. § 3583(g) was designed to protect the public by imprisoning people with drug addiction at the first sign of drug use. This targeting of drug activity is so punitive that it violates the jury right under the Supreme Court’s 2019 decision in United States v. Haymond
Insuring Intentional Torts
No full textThis Article analyzes the competing public policies and arguments in favor of and against allowing insurance to cover intentional torts. In doing so, it discusses numerous lines of liability insurance that expressly cover various types of intentional torts. It then explores whether the theoretical foundation underlying the public policy against allowing liability insurance to cover intentional torts—that intentional misconduct is effectively deterred and punished by disallowing coverage—is supported by empirical evidence
How Free is Free Speech: Media Bias, Pretrial Publicity, and Defendants\u27 Need for a Universal Appellate Rule to Combat Prejudiced Juries
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“I’d Feel Like Someone Was Watchin’ Me… Watching for a Good Reason”: Perceptions of Data Privacy, Access, and Sharing in the Context of Real-Time PrEP Adherence Monitoring Among HIV-Negative MSM with Substance Use
No full textOnce-daily oral tenofovir/emtricitabine is highly effective as pre-exposure prophylaxis (PrEP) against HIV but is dependent on adherence, which may be challenging for men who have sex with men (MSM) and use substances. Digital pill systems (DPS) permit the direct, real-time measurement of adherence, though user perceptions of data privacy in this context are unknown. Thirty prospective DPS users – HIV-negative MSM with non-alcohol substance use – completed in-depth qualitative interviews exploring preferences around privacy, access, and sharing of DPS adherence data. Participants discussed some concerns about the impact of DPS use on personal privacy, and emphasized the need for robust data protections in the technology. Participants were interested in having on-demand access to their adherence data, and were most willing to share data with primary care providers and long-term relationship partners. Future investigations exploring bioethical frameworks around DPS use are warranted, and user preferences should inform best practices for protecting DPS data
Meaningless DNA: Moore’s Inadequate Protection of Genetic Material
No full textMoore v. Regents of the University of California represents the seminal case regarding the protection of genetic material. In this case, the California Supreme Court held that patients do not retain property rights in their excised genetic material; instead, informed consent laws serve as genetic material’s only protection. Many states have accepted the Moore court’s decision not to extend property rights to genetic material, and most states choose to protect genetic material through informed consent alone. Moore and informed consent do not adequately protect genetic material, creating unjust results in which “donors” of genetic material have little to no recourse against researchers that may seek to exploit them. Moreover, the two most commonly advanced solutions to this lack of protection for genetic material— privacy law and property law—are each often proposed exclusively of the other, allowing researchers to profit off of discarded surgical materials to the detriment of patients. These loopholes have led to two notable victims of genetic exploitation: John Moore of the Moore case and Henrietta Lacks. This Comment uses these two highly publicized victims of genetic material exploitation to argue that Moore is an outdated and erroneous decision. It then builds on previously advanced arguments for a combined privacy-and-property law approach to genetic material protection, advocating for a solution that more appropriately addresses the complexities of genetic material. This proposed approach ultimately entails an intersection between privacy, property, and tort law in the area of technical battery, which would preserve both patients’ rights and the sense of self that accompanies genetic material
