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Reclaiming the Constitutional Text from Originalism: The Case of Executive Power
Get PDFThere are consequences to theories in a world questioning the power of the President. For decades, some originalists, including Justice Scalia, maintained that the President enjoys “all” executive power. Of course, this is not the Constitution’s actual text (which refers to “the” executive power, not “all” executive power)—but a highly contestable, and potentially dangerous, addition of meaning to the text. As I demonstrate in this Article, adding to the actual text of the Constitution is common in the originalist literature on executive power, whether the precise question is the President’s removal power, the President’s power to refuse to enforce the law, or the President’s obligations under the Emoluments Clause. Using elementary principles from the philosophy of language—principles that apply to all communication—I explain how originalist interpreters in this area “pragmatically enrich” the text, without articulating or justifying those additions and without seeking to test those meanings against the full text of the Constitution. Before one gets to history, the originalist has assumed a unit of textual analysis—a word, a clause, a paragraph—that may effectively enrich the meaning to reflect the interpreter’s preferred policy position. If this is correct, originalists must theorize the “interpretation zone,” a putatively neutral place from which historical inquiries are launched, and explain why interpreters may add meaning by pragmatic enrichment in this zone—particularly if those meanings are falsified by the rest of the Constitution. Perhaps more importantly, originalism’s opponents need to start talking about how to reclaim the actual text of the Constitution
Lurching from Complacency to Panic in the Fight Against Dangerous Microbes: A Blueprint for a Common Secure Future
Get PDFDespite the clear lessons of history - most recently the West African Ebola Epidemic - the international community systematically underestimates the urgent global health hazards posed by emerging infectious diseases. Indeed, looming challenges – namely, rising populations, urbanization, mass migration, rapid travel and trade, climate change, weak states and ethno-nationalism – render pandemic preparedness more acute than ever before. This article details the urgent threats to global health security and argues that the international community must learn from previous outbreaks and urgently invest in preparedness.
The article offers a blueprint for a more secure future from pathogenic threats facing humankind. We argue that states must pivot from the existing reactive approach to one of preparedness. What would it take to create a decidedly more secure world? What steps must we put in place to bolster defenses against infectious diseases? What are the political, financial, and regulatory obstacles standing in the way?
We contend that global health security requires economic investment, strong international institutions led by an empowered World Health Organization, resilient national health systems, targeted research and development, and effective communication with affected populations. We detail recent reforms of the WHO and emergency response within the UN system.
Ultimately, future action must be guided by cooperative action, shared responsibility, equity and fairness, and respect for global health norms. Through a modest security dividend, states could ensure far greater health security. Yet, notwithstanding promising initiatives, the current political climate of ethno-nationalistic populism risks undercutting global solidarity and destabilizing global action against fast moving epidemics
Hearing to Examine Warrantless Smartphone Searches at the Border: Hearing Before the Subcomm. on Fed. Spending Oversight & Emergency Mgmt. of the S. Comm. on Homeland Sec. & Governmental Affairs, 115th Cong., July 11, 2018 (Statement of Laura K. Donohue)
Get PDFThe Extraterritorial Application of Federal Criminal Statutes: Analytical Roadmap, Normative Conclusions, and a Plea to Congress for Direction
Get PDFUnder what circumstances can crimes that cross national boundaries be prosecuted in federal court? This question is critical given the increasing frequency with which criminal conduct crosses borders. This Article provides a guide through extant extraterritoriality analysis--warts and all--and then considers what the answer should be.
First, this Article provides a step-by-step roadmap for those seeking to answer the questions of where a crime that spans borders was committed and, if it is deemed to have been committed outside the territory of the United States, whether the applicable statute and Constitution would countenance such a prosecution. This roadmap will reveal the myriad uncertainties and questions that confront courts daily. This Article resolves two of these doctrinal uncertainties: the continuing relevance of the Charming Betsy canon of construction and United States v. Bowman. Courts frequently invoke the Charming Betsy canon of construction to resolve extraterritoriality questions, but that canon is no longer relevant given the Supreme Court\u27s latest cases. In those cases, the Supreme Court has applied a strong presumption against the extraterritorial application of federal statutes to conduct occurring outside the United States. Federal courts, however, rarely apply this presumption in criminal cases, instead regularly relying on a 1922 Supreme Court case, United States v. Bowman, to hold that federal criminal statutes have extraterritorial reach. But Bowman, given recent developments and viewed in light of the history of the Court\u27s presumption, is an anachronism.
Second, this Article rebuts the near universal conclusion, reached by both courts and commentators, that extraterritoriality analysis should be the same in civil and criminal cases. Fundamental separation of powers considerations and criminal law\u27s foundational legality principle require that Congress, not courts, clearly and prospectively specify the content of criminal prohibitions. If there is ambiguity regarding whether a statute applies extraterritorially and in what circumstances, the operational arms of the legality principle, the rule of lenity, and (perhaps) the vagueness doctrine, demand that this ambiguity be resolved in favor of the defendant. In short, where a criminal statute is geoambiguous, a strong presumption against extraterritoriality ought to apply. These same principles do not apply in civil cases, and the rationales for the strong modern presumption that federal civil statutes do not apply to conduct beyond the boundaries of the United States advanced by the Supreme Court and scholars are not convincing.
The current state of affairs--in which courts apply a strong presumption against extraterritoriality in civil cases but decline to do so in criminal cases--is, in short, profoundly wrong-headed. Congress ought to act promptly to enact a general provision that provides uniform guidance on these questions in criminal matters
How Copyright Law Can Fix Artificial Intelligence\u27s Implicit Bias Problem
Get PDFAs the use of artificial intelligence (AI) continues to spread, we have seen an increase in examples of AI systems reflecting or exacerbating societal bias, from racist facial recognition to sexist natural language processing. These biases threaten to overshadow AI’s technological gains and potential benefits. While legal and computer science scholars have analyzed many sources of bias, including the unexamined assumptions of its often homogenous creators, flawed algorithms, and incomplete datasets, the role of the law itself has been largely ignored. Yet just as code and culture play significant roles in how AI agents learn about and act in the world, so too do the laws that govern them. This Article is the first to examine perhaps the most powerful law impacting AI bias: copyright.
Artificial intelligence often learns to “think” by reading, viewing, and listening to copies of human works. This Article first explores the problem of bias through the lens of copyright doctrine, looking at how the law’s exclusion of access to certain copyrighted source materials may create or promote biased AI systems. Copyright law limits bias mitigation techniques, such as testing AI through reverse engineering, algorithmic accountability processes, and competing to convert customers. The rules of copyright law also privilege access to certain works over others, encouraging AI creators to use easily available, legally low-risk sources of data for teaching AI, even when those data are demonstrably biased. Second, it examines how a different part of copyright law—the fair use doctrine—has traditionally been used to address similar concerns in other technological fields, and asks whether it is equally capable of addressing them in the field of AI bias. The Article ultimately concludes that it is, in large part because the normative values embedded within traditional fair use ultimately align with the goals of mitigating AI bias and, quite literally, creating fairer AI systems
State Action and the Constitution\u27s Middle Band
Get PDFOn conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints.
It turns out though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there is too much state action for the Constitution to apply. The Constitution takes hold only in a middle band—the Goldilocks band—sandwiched between these two domains. For constitutional limitations to have force, the government must act just enough—but not too much.
This Article’s first aim is to identify and describe this puzzling structure. It also examines a variety of doctrinal principles that produce and, perhaps, justify the state action doctrine’s three bands. The Article then argues that these seemingly disparate principles are all related to the special constitutional problems produced by the emergence of the middle band of government regulation. Finally, the Article concludes with some brief speculation about whether the modern tripartite structure can survive
Different Contexts, Different Risk Preferences?
Get PDFWe examine the stability of risk preferences across contexts involving different stakes. Using data on households\u27 deductible choices in three property insurance coverages and their limit choices in two liability insurance coverages, we assess the stability across the five contexts in the ordinal ranking of the households\u27 willingness to bear risk. We find evidence of stability across contexts involving stakes of the same magnitude, but not across contexts involving stakes of very different magnitudes. Our results appear to be robust to heterogeneity in wealth and access to credit, complicating seemingly ready explanations
Missing: Where Are the Migrants in Pandemic Influenza Preparedness Plans?
Get PDFInfluenza pandemics are perennial global health security threats, with novel and seasonal influenza affecting a large proportion of the world’s population, causing enormous economic and social destruction. Novel viruses such as influenza A(H7N9) continue to emerge, posing zoonotic and potential pandemic threats. Many countries have developed pandemic influenza preparedness plans (PIPPs) aimed at guiding actions and investments to respond to such outbreak events.
Migrant and mobile population groups—such as migrant workers, cross-border frontier workers, refugees, asylum seekers, and other non-citizen categories residing within national boundaries—may be disproportionately affected in the event of health emergencies, with irregular/undocumented migrants experiencing even greater vulnerabilities. Because of a combination of political, sociocultural, economic, and legal barriers, many migrants have limited access to and awareness of health and welfare services, as well as their legal rights. The conditions in which migrants travel, live, and work often carry exceptional risks to their physical and mental well-being. Even if certain migrant groups have access to health services, they tend to avoid them due to fear of deportation, xenophobic and discriminatory attitudes within society, and other linguistic, cultural, and economic barriers. Evidence indicates that social stigmatization and anxieties generated by restrictive immigration policies hinder undocumented immigrants’ access to health rights and minimizes immigrants’ sense of entitlement to such rights
The Fault Is Not in Our Stars: Avoiding an Arms Race in Outer Space
Get PDFThe world is on the precipice of a new arms race in outer space, as China, Russia, the United States, and others undertake dramatic new initiatives in anti-satellite weaponry. These accelerated competitive efforts at space control are highly destabilizing because developed societies have come to depend so heavily upon satellite services to support the entire civilian economy and the modern military apparatus; any significant threat or disruption in the availability of space assets would be massively, and possibly permanently, disruptive.
International law regarding outer space developed with remarkable rapidity in the early years of the Space Age, but the process of formulating additional treaties and norms for space has broken down over the past several decades; no additional legal instruments have emerged that could cope with today’s rising threats. This Article therefore proposes three initiatives. Although none of them can suffice to solve the emerging problems, they could, perhaps, provide additional diplomacy, reinvigorating the prospects for rapprochement in space. Importantly, each of these three ideas has deep roots in other sectors of arms control, where they have served both to restore a measure of stability and to catalyze even more ambitious agreements in the longer term.
The first proposal is for a declaratory regime of “no first use” of specified space weapons; this would do little to directly alter states’ capabilities for space warfare, but could serve as a “confidence-building measure,” to temper their most provocative rhetoric and practices. The second concept is a “limited test ban,” to interdict the most dangerous debris-creating developmental tests of new space weapons. Third is a suggestion for shared “space situational awareness,” which would create an international apparatus enabling all participants to enjoy the benefits of greater transparency, reducing the possibilities for secret malign or negligent behavior. In each instance, the Article describes the proposal and its variations, assesses its possible contributions to space security, and displays the key precedents from other arms-control successes.
The Article concludes by calling for additional, further-reaching space diplomacy, in the hope that these relatively modest initial measures could provoke more robust subsequent negotiations
Substantial Shifts in Supreme Court Health Law Jurisprudence
Get PDFPresident Trump’s nomination of jurist Brett Kavanaugh to the U.S. Supreme Court presents significant, potential changes on health law and policy issues. If confirmed by the U.S. Senate, Kavanaugh’s approaches as a federal appellate court judge and scholar could literally shift the Court’s balance on consequential health policies. Judge Kavanaugh has disavowed broad discretion for federal agency authorities, cast significant doubts on the constitutionality of the Affordable Care Act, and narrowly interpreted reproductive rights (most notably abortion services). He has supported gun rights pursuant to the Second Amendment beyond U.S. Supreme Court recent interpretations. His varying positions related to consumer protections, environmental regulation, and antidiscrimination protections lend further to major concerns on the maintenance of settled positions of the Court on these and other critical health issues