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The Impact of Climate Change on Virginia\u27s Coastal Areas
Get PDFAs part of HJ47/SJ47 (2020), the Virginia General Assembly directed the Joint Commission on Technology and Science (JCOTS) to study the “safety, quality of life, and economic consequences of weather and climate-related events on coastal areas in Virginia.” In pursuit of this goal, the commission was to “accept any scientific and technical assistance provided by the nonpartisan, volunteer Virginia Academy of Science, Engineering, and Medicine (VASEM). VASEM convened an expert study board with representation from the Office of the Governor, planning district commissions in coastal Virginia, The Port of Virginia, the Virginia Economic Development Partnership, state universities, private industry, and law firms. In producing the report, the board followed methods similar to those used by the National Academies of Science, Engineering, and Medicine by convening an expert committee tasked with studying and reporting on the topic. As a result, the report represents the views and perspectives of the study board members but was not submitted for public review or comment.
This report is the product of those efforts. It finds that climate change will have an increasingly disruptive effect on people living in Virginia’s coastal areas during the 21st century — and that these disruptions will have repercussions across the Commonwealth. It includes an explanation of the physical forces driving climate change, an analysis of the current and projected effects of climate change on the Commonwealth, perspectives that legislators might consider as they face these challenges, and recommendations that could help Virginia implement more productive and effective strategies to address them
Marriage Equality\u27s Lessons for Social Movements and Constitutional Change
Get PDFThe marriage equality movement won its first state victory in 2003, and within a dozen years fifty states were handing out marriage licenses. The swiftness of the constitutional triumph was only possible because public opinion underwent a sea change in that period. Sexual and gender minorities achieved this remarkable turnaround once a critical mass, widely dispersed in the country, came out of their closets as committed couples (often raising children), and mainstream America found their stories more consistent with their own lives than they did a generation earlier. Other lessons of marriage equality’s success, however, are how hard it is for a social movement to change longstanding norms and perspectives and how prejudice and stereotyping survive court victories and migrate to other issues and social groups
Paternalism, Tolerance, and Acceptance: Modeling the Evolution of Equal Protection in the Constitutional Canon
Get PDFThis Article proposes a legal taxonomy through which we can model changes in interpretations and applications of antidiscrimination principles to best understand the evolution of equal protection doctrine. The goal for doing so is two-fold. First, through a careful exegesis of a wide range of equal protection cases from the past hundred and fifty years, the analysis provides a positive theory to chart how respect for minority rights can progress within a given doctrinal space. Second, the analysis provides an unabashedly normative assessment of how closely a given legal regime comes to accepting and celebrating the inherent dignitary interests of marginalized groups and the extent to which its jurisprudence begins to subvert subordination practices. Consequently, the Article attempts to trace both how far we have come and to criticize the potential shortcomings of the extant body of jurisprudence from the Supreme Court on issues related to equality.
In advancing this evolutionary model of civil rights jurisprudence, the Article charts the key characteristics of the three stages in the development of equal protection under the law: paternalism, tolerance, and acceptance. In the process, the Article scrutinizes and reassesses some of the most canonical decisions in the civil rights firmament and considers how these purported hallmarks of progressive jurisprudence—from Justice Harlan’s prescient dissent in Plessy v. Ferguson and the Supreme Court’s rare moment of post- Reconstruction racial awakening in Strauder v. West Virginia to Mendez v. Westminster and Brown v. Board of Education, right through the modern-day sexual-orientation triumvirate of Lawrence v. Texas, Windsor v. United States, and Obergefell v. Hodges—fell short in critical ways. In the end, the goal of this Article and the model it presents is to encourage a more robust and fulsome notion of equal protection—one that is proactive rather than reactive; one that affirmatively renounces, rather than stays silent on, supremacist ideologies; and one that uses the legal machinery of the state to accept and celebrate the inalienable rights and worth of individuals who are members of targeted groups
The Qualitative Fourth Amendment: The Case for a Refined, Information-Focused Approach to Fourth Amendment Cases Involving Non-Trespassatory Government Surveillance
Get PDFIn his 2001 majority opinion for Kyllo v. United States, Justice Scalia adopted his characteristic chiding tone to gently reproach what he saw as a notably liberal departure from the original textual interpretation of the Constitution. The Katz test for Fourth Amendment violations, to Scalia, was plainly “circular, and hence subjective and unpredictable.” That it was one of the most influential and oft-discussed decisions the Supreme Court has ever handed down made little difference; regardless of whatever Justice Harlan and his successors had said, the Fourth Amendment was, at its heart, a protection against government interference with property and had never been tied to “the quality or quantity of information obtained.”
Of course, Scalia’s property-centric reproach of Katz’s legacy was far from unprecedented. In fact, legal scholars as well respected as Judge Richard Posner of the Seventh Circuit Court of Appeals had been slinging the very same criticisms at the two-prong Katz test for years. No matter one’s opinion of either of these jurists, or of the ubiquitous “reasonable expectation of privacy” test, it would be difficult to argue that it has been easy to apply in practice. And the Court has, frustratingly, avoided directly addressing the issue. Given this, one might be tempted to join the textualists in their opinion that the old, easy-to-apply, property-based standard is superior.
That does not mean, however, that the Katz test has led to undesirable outcomes. In the age of modern technology, when the government has access to surveillance methods allowing unprecedented intrusion into the privacies of life, Americans are more conscious of their privacy interests than ever and less confident that those interests will be protected. For all the valid criticisms that may be levied against it, the Katz test, at the very least, offers an avenue for confronting these concerns.
This is exactly what happened when the Court rendered its decision in Carpenter v. United States, a landmark case extending Fourth Amendment protection to historical cell site location information (CSLI)—data generated, collected, and maintained by cell phone service providers entirely outside the control of the individuals the data describes. Reactions to Carpenter varied, but it should be clear to anyone who understands the history and context behind the Court’s decision that it represents a direct repudiation of the notion that the appropriate Fourth Amendment analysis is not “tied to measurement of the quality or quantity of information obtained.” In fact, the Carpenter analysis was explicitly tied to both the quantity and quality of the information at stake.
But the problem remains unaddressed, as the Court has yet to outline an all-encompassing approach to Fourth Amendment cases of unwarranted government surveillance that do not involve physical trespass. These kinds of cases rarely overrule each other, so it seems intuitive that the Court should be able to establish some consistent through line. Yet, so far, it has not. This Note proposes that it can be done, but only if the Court readily admits that the Fourth Amendment no longer protects only property, but also information. The ultimate outcome of Carpenter, and of every case that has adequately applied the Katz test, has been to keep certain information out of government hands.
Somewhat ironically, this includes Kyllo. It is from the language of Kyllo, originally intended to protect the traditionally privileged space of the home, that this Note draws inspiration for its proposed rule: absent probable cause, the Fourth Amendment proscribes the government from obtaining information that could not otherwise have been obtained without resorting to surveillance technology or physically trespassing on private property. This relatively simple standard, which can be called the obtainable information rule, unifies the collective holdings of post-Katz surveillance cases and provides a flexible framework for future decisions and new technologies.
In order to understand exactly how the obtainable information standard works, it is important to place it in the historical context of Fourth Amendment doctrine. Part I of this Note will examine the history of Fourth Amendment doctrine in cases of government surveillance since 1967 and leading up to Carpenter v. United States, a landmark case of critical importance to this argument. Part II will explore some of the theories proposed by academics for reconstructing, clarifying, or otherwise refining Fourth Amendment surveillance doctrine in a palatable manner, and will explain why each is unsatisfactory in at least one regard. It will then formally propose the obtainable information standard as a satisfactory alternative, capable of unifying post-Katz surveillance jurisprudence under a single theory. Part III will discuss the intersection between the obtainable information standard and third-party doctrine, which has become a subject of much discussion (and concern) following Carpenter. It will explain how the third-party doctrine need not be thrown out the window in order to accommodate the proposed standard.
Finally, it is worth noting that the purpose of this Note is not to argue that the obtainable information rule is the solution most resonant with the original meaning of the Fourth Amendment. Rather, the primary purpose of the rule is to synthesize the various holdings of the Supreme Court since Katz into a single, easy-toapply standard. As Part II will explain, there is also good reason to believe that it is the most functionally desirable rule, but this Note does not address the contention that any or all of the Supreme Court’s holdings since Katz were themselves unconstitutional and should be overruled
Destructive Federal Decentralization
Get PDFThis Article—written for a symposium hosted by the William & Mary Bill of Rights Journal—focuses on the efforts by the Trump administration to relocate federal officials outside of Washington to reduce the capacity of the federal government. Federalism and the separation of powers are usually the twin pillars of structural constitutional law. Locating federal officials outside of Washington— federal decentralization—has been an additional tool of diffusing power that has started to gain some scholarly attention. These debates largely focus on structural constitutional law as constructive—as improving the capacity and operation of the federal and state governments. The power to diffuse becomes the power to democratize because more types of officials subject to more types of forces are empowered. There is another means of viewing these principles: as destructive rather than constructive. The power to diffuse becomes the power to destroy.
The Trump administration used federal decentralization in this destructive way. It attempted to reduce the number of officials who know how the federal government operates, with only minimal benefits in return. In the shorter term, these destructive efforts will be costly to reverse, thereby disabling important federal offices. In the longer term, it means that federal decentralization will not be associated with the Federal Reserve Bank or the lower federal courts, but with “drain the swamp.
The Race to the Top to Reduce Prosecutorial Misconduct
Get PDFThis Essay offers an unconventional approach to deterring prosecutorial misconduct. Trial judges should use their inherent authority to forbid prosecutors from appearing and handling cases in their courtrooms until the prosecutors have completed training on Brady v. Maryland, Batson v. Kentucky, and other types of prosecutorial misconduct. If a single trial judge in a medium-sized or large jurisdiction imposes training prerequisites on prosecutors, it could set off a race to the top that encourages other judges to adopt similar (or perhaps even more rigorous) training requirements. A mandate that prosecutors receive ethics training before handling any cases is comparable to the enhanced training requirements that some state legislatures impose on indigent defense lawyers. This Essay argues that trial judges arguably have the inherent authority to impose a training requirement on prosecutors to ensure the orderly administration of justice
Will the Supreme Court Recover Its Own Fumble? How Alston Can Repair the Damage Resulting from NCAA\u27s Sports League Exemption
Get PDFHorizontal restraints are unlawful per se unless a court can identify some redeeming virtue that such restraints may create. In National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma (“NCAA”), the Supreme Court rejected this standard, refusing to condemn horizontal restraints on price and output imposed by the NCAA without specifying any possible redeeming virtues. The Court emphasized that other restraints not before the Court were necessary to create and maintain athletic competition like that supervised by the NCAA. This exemption for sports leagues ensures that all restraints imposed by such entities merit Rule of Reason scrutiny, regardless of how harmful they appear.
Building on a forthcoming article, this Essay contends that NCAA’s sports league exemption contravenes traditional antitrust principles, including the ancillary restraints doctrine (which NCAA ignored). This Essay also argues that the exemption increases the number of false negatives and potentially impedes the conduct of Rule of Reason analysis. Finally, this Essay explains how the exemption inspired and informed an ill-advised doctrinal innovation, the so-called “Quick Look” methodology of Rule of Reason analysis, whereby courts condemn certain restraints “in the twinkling of an eye.” Some lower courts have recently extrapolated from this approach and exempted restraints limiting rivalry for the services of student athletes from Rule of Reason scrutiny, rendering such restraints lawful per se.
The United States Supreme Court is currently reviewing the Ninth Circuit’s holding in National Collegiate Athletic Association v. Alston, which condemned NCAA regulations limiting the size of athletic scholarships. This Essay provides the Alston Court with a roadmap for eliminating the sports league exemption, thereby placing such restraints on equal footing with restraints imposed by other entities. The Essay also advises the Court to reject lower court decisions that built upon the Quick Look doctrine and have treated restraints governing student athlete eligibility as lawful per se, thus exempting them from Rule of Reason scrutiny. Finally, the Essay concludes that the restraints before the Court in Alston may well produce cognizable antitrust benefits by overcoming the market failure that would result from unbridled rivalry for the services of student athletes. The Essay submits that the Court should articulate a Rule of Reason methodology in Alston that reflects the non-technological nature of such efficiencies
Judging History: How Judicial Discretion in Applying Originalist Methodology Affects the Outcome of Post-Heller Second Amendment Cases
Get PDFThis Article aims to assess how the federal appellate courts have applied the originalist methodology in Second Amendment cases in the decade since Heller. It reviews how courts’ varying approaches to historical analysis—specifically, how courts have addressed what historical period to look to, how prevalent a historical tradition must be, and whether to address history at a high or low level of generality—can drastically affect the outcome of cases. As Justice Scalia acknowledged in McDonald, “Historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it.” Examining how courts answer these threshold questions and make nuanced judgments about history is necessary if courts are going to make consistent and predictable decisions in Second Amendment cases.
In researching this Article, the author looked at fifty of the most significant Second Amendment cases across the federal circuit courts and analyzed their treatment of several methodological points. Ultimately, this research shows that while there is a near unanimous national consensus within the federal circuit courts on the overall framework for assessing Second Amendment challenges—known as the “two-step test” or the “two-part test”—there are important unresolved methodological issues that have an important impact on how Second Amendment cases are analyzed and decided. These methodological issues, which exist within the consensus framework, allow judges to influence the ultimate decision in a case while appearing to apply objective criteria. This Article aims to bring these issues to the fore and to encourage further consideration of these important originalist methodological points