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Circumscribing Alaskan Law Enforcement’s Access to Pretrial Electronic Monitoring Location Data
No full textIn Alaska, pretrial detainees comprise much of the state’s prison population. Electronic monitoring—made possible by recent bail reforms—provides a pathway to pretrial release for those who cannot afford to pay bail. Using GPS data, the Pretrial Enforcement Division can monitor the location of a releasee’s ankle monitor for supervisory purposes. But when law enforcement seeks warrantless access to that data to investigate crimes other than the one for which a releasee is awaiting trial, that intrusion raises concerns under Alaska’s constitutional right to privacy. This Note argues that the Alaska judiciary, which is best positioned to guard the privacy of pretrial releasees in this area, should treat warrantless searches of this type as per se unreasonable, absent narrow exceptions. This Note posits that a reverse location search of pretrial electronic monitoring data for general investigative purposes constitutes a “search” under both the U.S. and Alaska Constitutions. Through the contextualization of Alaska’s use of electronic monitoring, analysis of the impact of Alaska’s constitutional right to privacy on the search inquiry, and analogy to the constitutionally suspect geofence search, this Note demonstrates that requiring a warrant for this data for investigative purposes is consistent with Alaska’s search-and-seizure jurisprudence. Acknowledging the inherent tradeoffs involved in pretrial release, this Note strives to establish a workable middle ground where law enforcement can access sophisticated tools in the interest of public safety without abandoning the privacy values the Alaskan people have enshrined in their constitution
Structural Logics of Presidential Immunity
No full textIn Trump v. United States, the Supreme Court wrought two new presidential immunities from criminal prosecution. Supplemented by a pair of penumbral evidentiary rules, these immunities inhibit criminal indictment or conviction of the president, and indeed the criminal prosecution of a substantial number of subordinate officials, across many imaginable fact-patterns. The Court justified its interventions on consequentialist, and not originalist or precedential, grounds. But its analysis of immunity’s actual and likely effects was radically incomplete. It focused narrowly on the person of the president, eschewing any attempt to situate or relate that individual’s incentives and behavior to the wider institutional contexts of the executive branch or to the partisan–political environment of electoral competition more generally. Yet presidents inevitably move in, and profoundly shape, both the bureaucratic and the political domain. What, then, are the spillover effects of presidential immunity?
Correcting for the opinion’s myopic focus, this Article develops a more comprehensive, consequentialist analysis of presidential immunity’s impact on the democratic constitutional order in light of institutional dynamics. To this end, it draws upon political-science and game-theoretical models to isolate a series of “structural logics” of presidential action. These structural logics are multistep causal pathways by which a constitutional rule can reshape not just presidents’ behavior, but the incentives and actions of both executive-branch and elected officials. Such logics operate without regard to who inhabits the Oval Office at a given moment—rendering the ensuing account general, rather than specific to a given office holder. They are thus durable tendencies of institutional action.
This wider structural accounting of presidential immunity suggests that the Court’s ruling does not meaningfully advance the principal good identified by the majority—that is, an energetic executive branch as a whole—and may indeed have a perverse side-effect of inhibiting presidential policymaking capacity. On the other side of the ledger, immunity severely compounds risks of fiscal corruption and criminal partisan entrenchment in both the Oval Office and across the larger executive branch. This Article’s comprehensive accounting aims first to suggest the analytic utility of a structural-logic lens as a general matter for evaluating public-law questions, but more narrowly intimates that the Court’s conception of presidential immunity may land a significant, self-inflicted blow upon democratic ordering
The End of Means-End Scrutiny
No full textIt is black-letter law that courts apply means-end scrutiny to evaluate laws that burden constitutional rights. Not anymore. Discreetly and pervasively, the Supreme Court has ousted means-end scrutiny from constitutional law. It has done so through a series of smaller and seemingly unconnected doctrinal incursions, including the introduction of history and tradition tests, the transformation of equality doctrines, and the embrace of formalist rules to govern constitutional law.
This Article provides a complete and interconnected critique of the numerous doctrinal transformations that together comprise the larger constitutional revolution of ending means-end scrutiny. It tracks how this upheaval now touches nearly every fundamental right and important federal power—but not in exactly the same way. Rather, the Court has tailored the end of means-end scrutiny to benefit the same subset of authorities, rights, and groups. In particular, the end of means-end scrutiny has reoriented the landscape of constitutional law to weaken federal authority, strengthen protection for libertarian as opposed to egalitarian rights, and benefit private power and dominant political, economic, and social groups.
The upshot of this patterned end of means-end scrutiny is a foundational change not just to the prevailing methodology of constitutional adjudication but also to the very nature of constitutional rights and judicial review. By eliminating consideration of governmental means and ends from the construction of rights, the Court has crafted a new form of judicial review that is court-centric, formalist, and dominance-reinforcing. The Article tracks and critiques this doctrinal and theoretical transformation, connecting it to the most salient debates in constitutional law today and exposing the deep and troubling consequences of the seismic—and yet largely silent—collapse of means-end scrutiny
The Fourth Amendment’s Failure to Protect Against Mass DNA Collection at the Border
No full textThe U.S. government has long surveilled immigrant communities by collecting identifying information, including biometric data. The passage of the DNA Fingerprint Act of 2005 expanded the possible sources of data to include DNA. In 2020, the Trump administration seized on the permissive language of the statute to require that DNA be collected from nearly every noncitizen detained by the federal government. Now, 2.6 million noncitizens and counting have their DNA permanently stored by the federal government. This expansive surveillance program operates despite the Fourth Amendment’s promise of protection because of the exceptionalism of both DNA searches and the border in contemporary Fourth Amendment jurisprudence. However, even if a constitutional violation could be established, noncitizens lack a meaningful legal remedy
Strengthening the Rule of Law in Ecuador: A Conversation With Jhoel Escudero Soliz, President of the Constitutional Court
No full textVolume 109, Number 2 (2025)
No full texthttps://scholarship.law.duke.edu/judicature/1033/thumbnail.jp
Reforming H-2A: Protecting Migrant Workers Before Arrival on U.S. Farms
Full text linkMigrant farmworkers who seasonally enter the United States to work on farms using H-2A visas suffer well-documented abuses. Dependent on their employers for legal status, housing, transportation, and food, H-2A workers succumb to a power dynamic that keeps workers from speaking out for fear of being fired and possibly deported. However, little academic attention has been paid to the problematic dynamics that trap these workers in a cycle of abuse long before they even set foot on U.S. farms, starting with the H-2A recruitment process. This process, which often starts in Mexico, involves an opaque and complicated network of recruiters who fraudulently or illegally charge workers recruitment fees. Further, workers often must pay out of pocket to travel from Mexico to the United States, and employers often fail to fully reimburse workers once they arrive. Instead, workers must take out loans and incur significant debt, even though they are doing employers a favor by alleviating the inadequate farm labor supply in the United States.
This Note examines the pervasiveness of recruitment debt that H-2A workers shoulder before even arriving to the United States and argues that current federal regulations enable this debt by allowing for reimbursement post-arrival. This Note then proposes two solutions aimed at increasing worker power ex ante—before arrival. First, the Department of Labor should increase transparency into who recruiters are by thoughtfully designing a recruiter database accessible to potential H-2A workers. Second, new regulations should require employers to pay for travel and application expenses and should prohibit reimbursement except in rare circumstances. These new regulations must be coupled with strategic enforcement to incentivize employers themselves and the recruiters they use to comply with the proposed regulations
National Security Law and Business
No full textModerator: Prof Robert E. “Bobby” Bishop, associate professor, Duke Law School
Panelists:
Ms. Rachael D. Kent, Vice Chair, International Arbitration Practice Group, WilmerHale
Prof Timothy Meyer, Richard Allen/Cravath Distinguished Professor in International Business Law, Duke University School of Law
Ms. Jennifer S. Zucker, Co-Chair, Government Contracts Practice, Greenberg Trauig, LLP
Ms. Caroline E. Brown, Partner, Crowell & Moring, member of the firm’s International Trade groups and serves on the National Security Practice steering committe
