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Breaking the Fourth\u27s Wall: The Implications of Remote Education for Students\u27 Fourth Amendment Rights
Get PDFAs the COVID-19 pandemic forced both public K-12 and higher education institutions to transition to exclusively provide remote education, students’ homes and personal lives were exposed to the government like never before. Zoom classes and remote proctoring were suddenly the norm. Students and their families scrambled to create appropriate offices and classroom spaces in their homes, and many awkward and invasive scenarios soon followed. While many may have been harmlessly captured on camera, like classes that witness a student’s family eating lunch in the background or a dog on the couch, even these harmless instances have insidious implications for the future of government intrusion upon the interests protected by the Fourth Amendment within the home and beyond.
This Note argues that public schools’ virtual window into students’ homes, through mandatory remote classes and exam proctoring without the consent of students and their families, is an unreasonable search in violation of the Fourth Amendment. Going forward, public schools using remote learning technology should be required to obtain consent from students or their guardians prior to implementing such methods. Consent may be implicit or explicit, but must be informed and give individuals sufficient advance notice to adequately consider—or even object to—the government intrusion upon their privacy
The End of an Era: The Uncertain Future of Section 230 Immunity for Social Media Platforms
Get PDFMajor social media platforms (SMPs), such as Facebook, Instagram, and TikTok, have become the primary means of communication for billions of people worldwide. They are the largest modern news distributors and the primary curators of online public discourse. However, the expanding influence of SMPs has led many to publicly scrutinize the content moderation decisions of such platforms, as SMPs regularly remove, block, censor, and ban user-generated content (UGC), including third-party written messages, photos, and videos, at their discretion. Because SMPs exercise immense power and are largely self-regulated, there has been growing public sentiment that SMP content moderation violates Users’ free speech rights. Nevertheless, SMP content moderation decisions are protected by Section 230 of the Communications Decency Act of 1996 and the First Amendment of the United States Constitution
Congress enacted Section 230 to promote the development of the internet by granting “Good Samaritan” online services the authority to moderate UGC without potential liability. However, “Bad Samaritan” providers have also benefited from this immunity, bringing the law to the forefront of public debate regarding online free speech. Despite repeated congressional efforts to narrowly tailor Section 230’s protections, the future of SMP immunity and online speech is in the hands of the United States Supreme Court. How the Court decides this question of statutory interpretation could have widespread, unintended consequences for the modern internet. That being so, because policymakers are tasked with redressing societal ills, this Note proposes that Congress articulate a specific liability standard applicable only to SMPs, drawing on the immunity framework in Section 230(c) and narrowly tailored to the unique issues arising from SMPs. This solution evades constitutional concerns and is consistent with the congressional intent to safeguard the ability of SMPs to regulate content moderation for their platforms, subject to moderately heightened standards for immunity
Felony Financial Disenfranchisement
Get PDFIndividuals with prior felony convictions often must complete all terms of their sentence before they regain voter eligibility. Many jurisdictions include legal-financial obligations (“LFOs”)-—fines, fees, and/or restitution stemming from convictions-—in the terms of the sentence. Twenty-eight states, governing over 182 million Americans, either directly or indirectly tie LFO repayment to voting privileges, a practice we call felony financial disenfranchisement.
Proponents of felony financial disenfranchisement posit that returning citizens must satisfy the financial obligations stemming from convictions to restore themselves as community equals. Moralism aside, others claim low rates of electoral participation among those with felony convictions imply such disenfranchisement is inconsequential.
In this Article, we challenge both of these claims. To do so, we draw upon new empirical and contextual evidence from Florida, which disenfranchises more returning citizens than any other state. We rely on data and natural experiments from a nonpartisan, nonprofit advocacy group that we launched called Free Our Vote.
This Article illustrates how felony financial disenfranchisement creates uncertainty around voter eligibility, which likely deters many otherwise-qualified voters with felony records from participating. We also measure, for the first time, how felony financial disenfranchisement affects voter participation, using a debt relief program implemented by Free Our Vote. Specifically, we compare electoral participation of registered voters whose LFOs were eliminated by Free Our Vote against virtually identical debtors who did not benefit from our program. We find debt relief increased voter turnout by approximately twenty-six percent among this group during the 2020 election.
The contextual and empirical evidence we present unequivocally demonstrates that narratives in favor of felony financial disenfranchisement are misguided. Failure to pay criminal court debt typically arises from bureaucratic complications and opacity as well as indigency. Thus, ethics-oriented arguments grossly misconstrue the challenges returning citizens face. Likewise, the purported benefits of induced criminal court revenue from LFOs are overstated. Given the countervailing costs tied to criminal debt, and its disparate impact on indigent and Black defendants, we conclude that felony financial disenfranchisement is, on balance, a socially harmful policy that should be eliminated
Reliance Interests in Statutory and Constitutional Interpretation
Get PDFPeople and companies rely on public law when they plan their activities; society relies on legal entitlements when it adapts to new technology, economic conditions, and social groups; legislators, administrators, and judges rely on settled law when they pass, implement, and interpret statutes (respectively). Such private, societal, and public “reliance interests” are the “dark matter” of America’s law of interpretation. They underwrite most interpretive doctrine, and their perceived force broadly and deeply affects the application of doctrine.
Reliance interests anchor the constitutional bias in favor of interpretive continuity, and they provide guardrails for the leading theories of interpretation-—namely-—textualism or original public meaning, legal processor purposivism, and cost-benefit economic theory. Because reliance interests themselves evolve, they can also provide an orderly process for updating old norms, under whatever the predominant theory of interpretation might be.
Nonetheless, reliance interests do not always prevail. In recent statutory and constitutional decisions, the Roberts Court has applied traditional reliance interests selectively-—a signal that the Court is introducing a regime change that may scramble reliance interests as massively as the New Deal and Brown Courts did in the last century. Without a strong electoral endorsement of the emerging new regime, this is risky for an institution whose authority depends on its rule of law credibility, and it is doubtful that the Roberts Court will be as successful in overcoming or resetting reliance interests as the New Deal and Brown Courts
Returning Integrated Genomic Risk and Clinical Recommendations: The eMERGE Study
Get PDFThe potential of artificial intelligence (AI) to reduce health care disparities and inequities is recognized, but it can also exacerbate these issues if not implemented in an equitable manner. This perspective identifies potential biases in each stage of the AI life cycle, including data collection, annotation, machine learning model development, evaluation, deployment, operationalization, monitoring, and feedback integration. To mitigate these biases, we suggest involving a diverse group of stakeholders, using human-centered AI principles. Human-centered AI can help ensure that AI systems are designed and used in a way that benefits patients and society, which can reduce health disparities and inequities. By recognizing and addressing biases at each stage of the AI life cycle, AI can achieve its potential in health car
Surveillance Technologies and Constitutional Law
Get PDFThis review focuses on government use of technology to observe, collect, or record potential criminal activity in real-time, as contrasted with “transaction surveillance” that involves government efforts to access already-existing records and exploit Big Data, topics that have been the focus of previous reviews (Brayne 2018, Ridgeway 2018). Even so limited, surveillance technologies come in many guises, including closed-circuit television, automated license plate and facial readers, aerial cameras, and GPS tracking. Also classifiable as surveillance technology are devices such as thermal and electromagnetic imagers that can “see” through walls and clothing. Finally, surveillance includes wiretapping and other forms of communication interception. The following discussion briefly examines the limited evidence we have about the prevalence and effectiveness of these technologies and then describes the law governing surveillance, focusing principally on constitutional doctrine, and how it might-—and might not-—limit use of these technologies in the future
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Get PDFSymposium: Reimagining the Rules of Evidence at 50
Get PDFPrior to the eighteenth century, cartographers would often fill uncharted areas of maps with sea monsters, other artwork, or even rank speculation—a phenomenon labeled “horror vacui,” or fear of empty spaces. For example, in Paolo Forlani’s world map of 1565, a yet to-be-discovered southern continent was depicted with anticipated mountain chains and animals. The possible explanations for horror vacui are varied, but one reason may have been a desire “to hide [the mapmakers’] ignorance.” Not until “maps began to be thought of as more purely scientific instruments . . . [did] cartographers . . . restrain their concern about spaces lacking decoration in the interest of presenting their work as modern and professional.”
The law of evidence shares something of a kinship with those old maps. The Federal Rules of Evidence (“FRE”), perhaps the most successful codification project in the history of American law, have advanced the field in incalculable ways, but to treat them as the last word would be a grave mistake. For one thing, the FRE have significant gaps, empty spaces in need of exploration. The most obvious example is the law of privileges, where Congress rejected the rule writers’ proposed codification in favor of retaining the common law. More fundamentally, the FRE are almost entirely about admissibility, the sifting of existing evidence. They say little, if anything, about how evidence is weighed, and they do not typically reflect a concern for party incentives to collect or preserve evidence in the first place
Bringing Civil ity into Immigration Law: Using the Federal Rules of Civil Procedure to Fix Immigration Adjudication
Get PDFGovernment lawyers frequently argue, and courts have frequently held, that noncitizens in removal proceedings do not have the same rights as defendants in criminal proceedings. A common argument made to support this position is that removal proceedings are civil matters. Accordingly, a noncitizen facing deportation has fewer due process protections than a criminal defendant, and deportation proceedings similarly provide fewer protections than criminal proceedings.
In many ways, however, the rules governing immigration proceedings differ markedly from those governing civil actions in court. Immigration proceedings suffer from arcane and hypertechnical procedures that impede immigrants from having their claims reviewed on the merits. Notably, similar problems plagued the civil justice system back in the early twentieth century. The response was to create the Federal Rules of Civil Procedure, which emphasized a preference for deciding cases on their merits rather than on procedural technicalities. The modern Federal Rules have substantially simplified pleading requirements and emphasized flexibility in order to foster the goals of fairness, efficiency, and decisions on the merits.
This Article argues that the process that spawned the Federal Rules can offer valuable lessons for reforming immigration proceedings. The Article identifies several examples where immigration rules differ from the Federal Rules in ways that inhibit decisions on the merits. It then proposes a fundamental reexamination of immigration rules with an eye toward promoting decisions based on substance rather than procedure, as well as a structure for ongoing reform. Given the high stakes in removal proceedings, if society continues to treat immigration proceedings as civil matters, the least it can do is incorporate those aspects of the Federal Rules that best promote access to justice for noncitizens
Introduction
Get PDFPrior to the eighteenth century, cartographers would often fill uncharted areas of maps with sea monsters, other artwork, or even rank speculation-a phenomenon labeled horror vacui, or fear of empty spaces. For example, in Paolo Forlani\u27s world map of 1565, a yet- to-be-discovered southern continent was depicted with anticipated mountain chains and animals. The possible explanations for horror vacui are varied, but one reason may have been a desire to hide [the mapmakers\u27] ignorance. Not until maps began to be thought of as more purely scientific instruments . . . [did] cartographers . . . restrain their concern about spaces lacking decoration in the interest of presenting their work as modern and professional.
The law of evidence shares something of a kinship with those old maps. The Federal Rules of Evidence ( FRE ), perhaps the most successful codification project in the history of American law, have advanced the field in incalculable ways, but to treat them as the last word would be a grave mistake. For one thing, the FRE have significant gaps, empty spaces in need of exploration. The most obvious example is the law of privileges, where Congress rejected the rule writers\u27 proposed codification in favor of retaining the common law. More fundamentally, the FRE are almost entirely about admissibility, the sifting of existing evidence. They say little, if anything, about how evidence is weighed, and they do not typically reflect a concern for party incentives to collect or preserve evidence in the first place.
The FRE also have their metaphorical sea monsters-elements that make the law appear complete but, in reality, are merely gap- filling myths and traditions. The rules of evidence codified in the FRE are old. Our understanding of psychology, epistemology, and other fields has changed immeasurably since many of the rules were formulated, and perhaps it is time we updated the evidence rules for the twenty-first century.
To mark the fiftieth anniversary of the FRE, the goal of this Vanderbilt Law Review Symposium was to challenge a new generation of evidence scholars both to identify the gaps in the FRE as well as to critique existing ones that may be debunked, outdated, or otherwise problematic vestiges of the past. I charged the participants to be bold, to think outside the box, and to consider what the FRE could be for the next fifty years.
The contributions that follow offer a remarkably creative and varied set of responses to this charge