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Panel 2: Repeal or Amend? Section 230 and Governing Internet Liability Moving Forward
No full textIn the second panel, Will Rinehardt moderated a lively conversation about the current legislative landscape surrounding Section 230. Panelists discussed the range of possible ways to address concerns about how Section 230 currently operates — providing each of their thoughts on the effects caused by reform or repeal
Supply and Demand in the Illegal Employment of Undocumented Workers
Get PDFThe United States is in a quandary regarding immigration. There are over eleven million undocumented aliens residing in the country with about eight million of them working in the American economy.
The federal government has criminalized the illegal entry and the illegal reentry into the United States. Moreover, it has enacted a statute making it illegal to smuggle or harbor aliens. Federal prosecutors across the country have aggressively prosecuted people in violation of these statutes. At the same time, Congress criminalized the illegal employment of undocumented workers, but federal prosecutors rarely ever charge employers with violating this statute.
The economic principle of supply and demand applies to the labor market. Undocumented aliens come to the United States seeking jobs because American employers regularly hire them. If such employers felt significant consequences for such hires, they would be less inclined to violate federal law. With fewer employers hiring undocumented workers, there would be less demand. Consequently, aliens would be less likely to take the risks to come to the United States seeking jobs if they were unlikely to gain employment.
Ultimately, attacking the immigration on the supply side of the issue has failed. Thus, the article proposes targeting the demand side of the issue to promote immigration reform
The Moral Authority of Original Meaning
Get PDFOne of the most enduring criticisms of originalism is that it lacks a sufficiently compelling moral justification. Scholars operating within the natural law tradition have been among the foremost critics of originalism’s morality, yet originalists have yet to offer a sufficient defense of originalism from within the natural law tradition that demonstrates that these critics are mistaken. That task has become more urgent in recent years due to Adrian Vermeule’s critique of originalism from within the natural law tradition, which has received greater attention than previous critiques. This Article is the first full-length response to the natural law critique of originalism as represented by Vermeule, presenting an affirmative argument for originalism from within the natural law tradition. Although other theorists have offered natural law justifications for originalism, they have not yet developed a theory of legitimate authority, which is essential both to the natural law tradition and to originalism. This Article fills that gap by grounding originalism in the legitimate authority of the people-as-sovereign.
In doing so, it draws upon and adapts centuries-old natural law arguments in favor of popular sovereignty that have rarely been mentioned in American law reviews and have never been presented as the basis for originalism. By creating a novel synthesis between this natural law theory of popular sovereignty and originalism, the Article offers new responses to longstanding objections to popular-sovereignty-based originalist theories, such as the exclusion of women and enslaved Black people from the ratification process.
Finally, having answered those criticisms, the Article shows that obeying the original meaning of the Constitution is necessary to preserve the legitimate authority of the people, which is essential to achieving the common good. This allows the Article to confront the core of the natural law critique: that originalism is incompatible with the natural law because it privileges the original meaning above the natural law when they are in conflict. The Article demonstrates that this critique overlooks the natural law limits on judicial authority that undergird the common good. By grounding originalism in a moral argument drawn from the natural law, this Article shows that, far from being a morally empty jurisprudence, originalism is justified by the moral authority of original meaning
The Inconsistencies of Consent
Get PDFU.S. legal scholars have devoted a lot of attention to the role that consent has played in laws and judicial consent jurisprudence. This essay contributes to the discussion on consent by examining judicial approaches to determining the existence of consent in three selected areas--contracts, tort claims involving medical treatment, and criminal cases involving admissibility of confessions, from the late nineteenth century until the present. This article examines how courts have approached the basic factual question of finding consent and how judicial approaches in those areas have evolved over time. The review shows that the late 19th century saw courts adopting a similar approach for finding consent across the three areas. Courts focused on observable signs of consent, verbal or nonverbal communications, to determine existence of consent. They found consent unless circumstances suggested that the consenting party lacked the power to use their will. However, courts began to diverge in the early and mid-twentieth century in their approaches to ascertaining consent. In contract disputes, courts’ consent approach has remained static, focusing on observable signs of consent or, in contract law parlance, “manifestations of assent.” In tort cases involving medical treatment, courts began requiring more than observable signs of consent; instead, courts focused on the consenting party’s access to information and comprehension, described by scholars as the informed consent doctrine. The judicial consent approach undertook the most dramatic change in criminal cases involving admissibility of confessions with judicial adoption of presumption of non-consent in custodial interrogation without the required warnings.
This article suggests that multiple factors appear to have contributed to divergent consent approaches across the three areas. Consent plays a different role in contract disputes from that in medical treatment and criminal confession cases. Courts have adopted a heightened consent inquiry in medical treatment and criminal confession cases as responses to significant social changes and increased public awareness of individual rights and the need to protect individuals from potential abuses and arbitrary government power. In addition, human cognitive biases—our flawed decision-making process, may have also contributed to the divergence
New Light on the History of Free Exercise Exemptions: The Debates in Two Eighteenth-Century State Legislatures
Get PDFAs Justice Gorsuch pointed out in his concurring opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719, 1734 (2018), there is an ongoing debate about whether the First Amendment ever requires the recognition of religion-based exemptions to neutral and generally applicable laws. The leading proponent of such exemptions has argued that the original understanding of the Free Exercise Clause supports his claim, and that the existence of such exemptions in preconstitutional American statutes – which he believed to have been granted because legislators thought them mandated by “the free exercise principle” – is one factor pointing in that direction. His initial, and most influential, opponents reviewed the historical record and rejected both these positions. But none of these men presented a single instance in which a lawmaker explained his support or opposition to a religion-based statutory exemption. Nor have the academics and practicing lawyers who have continued this constitutional debate.
This article, which presents and analyzes the debates in two eighteenth-century state legislatures that adopted Sunday closing laws including exemptions for sabbatarians (people whose religious beliefs required them to regard Saturday as the Sabbath and refrain from working on that day), thus fills a key gap in the literature. The evidence presented here undermines the pro-exemption claims. And it points to the need for further research into newspaper accounts of Founding Era debates in American state legislatures
Executive Decisions After Arthrex
Get PDFDecisionmaking in the modern executive branch frequently rests on a convenient formalism. Ultimate power is typically vested in high-level “principal” officers who, under the Appointments Clause, must be appointed by the President with the advice and consent of the Senate. The vast bulk of day-to-day decisions within the branch, however, are made by thousands of lower-level officials who are either “inferior” officers appointed under the Appointments Clause or mere employees lacking any official appointment under modern doctrine. United States v. Arthrex marks out a constitutional limit to this modern allocation of power. Whatever de facto power lower-level officials possess as a matter of practice, the Court held in Arthrex that Congress cannot vest final decisional authority in subordinate civil servants not appointed by the President with the advice and consent of the Senate.Arthrex is significant for at least three reasons. First, the Supreme Court has now, for the first time in its modern separation of powers jurisprudence, relied on a combination of the Appointments Clause and Article II’s Executive Vesting Clause to invalidate statutory law not because of the tenure protections afforded to officers, but because of the distribution of decisional power between principal officers and lower-level officials. That new focus on the distribution of power leads to a second major implication of the case: The decisions of hundreds of inferior officers, such as administrative patent judges, must be subject to the review of a principal officer, but many questions remain to be answered about the exact scope and content of that review. Some of those issues are already being raised in litigation. Third, Arthrex deepens the tension between the Court’s recent separation-of-powers cases and its older precedent Morrison v. Olson. The Arthrex Court conspicuously avoided citing Morrison, but it did carefully limit its holding to “the context of adjudication.” That curious limitation leaves the law currently (though perhaps only temporarily) in a deeply untraditional place, with principal officer supervision over inferior officers required for some executive branch adjudicative decisions but not required for some core executive decisions such as whom to investigate and prosecute
The Intersection of Poverty and Child Welfare
No full textThe third panel provided a different perspective on the direction of reforming the child welfare system. Looking at the intersection of poverty and child welfare, the presentation aimed to challenge commonly-held perceptions of parents in the welfare system and focused on preventing maltreatment and children entering the system through the strengthening of parents and families