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Ratification of the Equal Rights Amendment: Lessons From Special Elections to The House of Representatives in 1837
Get PDFIn 1837 the House of Representatives considered a governor’s attempt to include a limitation in a writ issued to fill a vacancy in representation pursuant to Article I, Section 2 of the Constitution. The Representatives agreed almost unanimously that the limitation was unconstitutional and should be disregarded as mere surplusage rather than invalidating the writ and the election. This Article suggests that the similar Article V gives Congress only the power to propose amendments, without any limitation, and States the power to ratify amendments or not, without any power to rescind. Consequently, the time limit that Congress purported to impose on ratification of the Equal Rights Amendment is unconstitutional surplusage, and state rescissions are ineffective. Virginia’s ratification on January 15, 2020 pushed the Amendment past the three-quarters threshold, making it a valid part of the Constitution. The Article also considers lessons from the subsequent 1837 general elections and suggests that the Supreme Court — rather than Congress — should and likely will ultimately adjudicate the validity of the Amendment’s ratification
A Case for Reforming the Anti-Money Laundering Regulatory Regime: How Financial Institutions’ Criminal Reporting Duties Have Created an Unfunded Private Police Force
Get PDFPart I of this Note provides background information outlining the relevant BSA/AML laws that establish financial institutions’ affirmative duties to report financial crimes. Part II analyzes the contours of other laws that create mandatory criminal reporting obligations, including their extent, their underlying justifications, and how stringently government agencies enforce them. Part III demonstrates how financial institutions’ reporting duties are uniquely stringent and punitive compared to those imposed elsewhere in the law, and it questions the justifications of this policy. Lastly, Part IV of this Note argues that the BSA/AML regulatory regime could be reformed to reduce the costs and duties borne by financial institutions without sacrificing the government’s interests in deterring money laundering and ensuring national security. To be clear, this Note does not advocate for the elimination of BSA/AML reporting duties. Rather, it argues that the current BSA/AML regulatory regime would be more consistent with its stated objectives if federal policymakers adopted measures that reduce the disproportionate costs and perverse incentives discussed in this Note
The Fourth Amendment at Home
Get PDFA refuge, a domain of personal privacy, and the seat of familial life, the home holds a special place in Fourth Amendment jurisprudence. Supreme Court opinions are replete with statements affirming the special status of the home. Fourth Amendment text places special emphasis on securing protections for the home in addition to persons, papers, and effects against unwarranted government intrusion. Beyond the Fourth Amendment, the home has a unique place within constitutional structure. The home receives privacy protections in addition to sheltering other constitutional values protected by the Due Process Clause and the First Amendment. For example, under the Due Process Clause, the Constitution protects the intimate relationships and family life that constitute a home. As a physical structure, the home harbors private, domestic life. Constitutional protections of the household, however, extend beyond the enclosing walls of a physical structure. These intimate features of household privacy are necessary conditions for the fulfillment of what Justice Kennedy calls dimensions of freedom that extend outward into public life.
This Article demonstrates that because the home\u27s playing this role is a necessary condition for the possibility of republican self-government, the Fourth Amendment\u27s protection for household privacy is therefore also a structural check on federal and state power. With rapidly changing technology that can alter the balance between the government and its citizens, the home\u27s structural role within the Constitution\u27s system of separated powers is an overlooked feature of the Fourth Amendment. And as home personal assistant devices, doorbell security systems, and smart appliances all proliferate, so too do police requests to access stored digital information about the most intimate confines of interpersonal life. Once courts better recognize the home\u27s structural role, analysis of law enforcement access to such stored data will extend beyond questions of knowing exposure or third-party sharing to encompass questions about the systemic effects of pervasive police access to such data upon republican self-government. Conventional judicial doctrines that apply constitutional rights unmoored from their broader structural roles risk undervaluing privacy while upsetting the balance of constitutional structure. To avoid this overlooked consequence, courts need conceptual clarity about the role the home plays in both the Fourth Amendment and within constitutional structure. Rather than abandoning the idea of privacy in the face of overwhelming informational exposure and advancing technology, we can strengthen it by seeing how it protects broader claims to liberty while preserving an overlooked feature of constitutional structure resident in the home. This Article argues that the home provides a way of organizing a paradigm for privacy protections that extends not only to the confines of a physical home, but also to the person in the public sphere. By linking the liberties of the people with privacy of the home, the Fourth Amendment plays an essential structural role in protecting the household from domination by government institutions and officials. In this way, Fourth Amendment protections for the home function as much to promote political values as personal ones, thereby providing a structural check on executive power
Protections Against Tyranny: How Article V Should Guide Constitutional Interpretation
Get PDFThis Note seeks to explain what Article V means for the methods of constitutional change outside of the traditional Article V amendment process. Specifically, I argue that Article V was meant to limit the federal government from usurping power without first attaining the consent of the people. Because the Supreme Court is part of the federal government and is often considered a counter-majoritarian institution, the Court cannot extend the powers of the federal government through constitutional interpretation beyond the bounds allowed in the Constitution. Therefore, the only means to change the power structure of the federal government (the balance of power between branches of government or between federal and state governments) under the Constitution is through the Article V amendment process.
On the other hand, Article V was not meant to limit the federal government\u27s ability to protect rights belonging to the people. Although the Founders did not foresee the Supreme Court being the institution to protect natural rights, the Founders created a system of government that required that result. This argument is therefore both originalist and structural: originalist in that the Framers had no intent to only use the Article V method to extend rights to the people, and structural in that the expression of general rights written in the Constitution necessarily made it the role of the Court to protect those rights.
In determining how Article V should be understood regarding other methods of constitutional change, I look to the Founding Fathers, not because the ideas of the Founders necessarily control modern interpretations of the Constitution, but because there is wisdom in the Founders\u27 ideas. In most methods of constitutional interpretation, the intentions of the Founders at least count for something. When designing the system of government, the Founders had a vision for what that system should accomplish. By ascertaining what the Founders attempted to accomplish, legal minds today can assess whether those goals were appropriate and whether the Constitution was successful in accomplishing those goals. While many may disagree with some of the Founders\u27 ideas, those ideas are still worth consideration because the Founders engaged in serious deliberation, and many of their ideas have been subsequently reaffirmed by later generations
Books That Matter: The Federalist Papers (DVD and Guidebook)
No full textDespite their lack of official or legal status, it would be difficult to overstate the influence of The Federalist Papers. These 85 brilliant essays have served as the single most important guide to the interpretation and application of the United States Constitution for more than 230 years. Authored by Alexander Hamilton, James Madison, and John Jay, The Federalist Papers offer a detailed blueprint for building a successful democratic republic, investigating such topics as: The danger that factions posed in a representative democracy; The balance of power between the federal government and the states (“dual sovereignty”); The way a bicameral legislature would prevent the rise of tyranny; and The roles of the president and the federal judiciary.
Over the past two centuries, the American government has seen its share of trials and tribulations, and the 21st century has ushered in a host of new crises, from the growing surveillance state to the political polarization exacerbated by social media. Will the American system of government survive the next crisis? Are we still governed by the same system the Framers of the Constitution envisioned? What do they have to tell us about good governance today—or our political future?
Delve into these questions and more with Books That Matter: The Federalist Papers. Taught by acclaimed professor and legal scholar Joseph L. Hoffmann of the Indiana University Maurer School of Law, these 12 thought-provoking lectures take you back to the hot summer weather of Philadelphia in 1787, when the delegates from the states gathered to revise the Articles of Confederation.
What emerged from the proceedings was an entirely new Constitution representing an entirely new system of government unlike anything the world had ever seen. As you will learn, the Framers were rightly concerned about whether the 13 largely autonomous states would accept a strong, centralized federal government, and whether such a system could include safeguards to protect against the tyranny they’d just fought a war to overcome.
To answer these concerns, the authors laid out a bold vision for the new nation, drafting what became essentially the Bible of American government—perhaps America’s most significant contribution to the way that human beings choose to organize their lives, and their societies, in order to fulfill their hopes and pursue their dreams together. Books That Matter: The Federalist Papers surveys this magisterial body of work and takes you inside the strengths—and potential weaknesses—of the American government as it was envisioned in its earliest days.https://www.repository.law.indiana.edu/facbooks/1289/thumbnail.jp
Using AI to Analyze Patent Claim Indefiniteness
Get PDFWe describe how to use artificial intelligence (AI) techniques to partially automate a type of legal analysis, determining whether a patent claim satisfies the definiteness requirement. Although fully automating such a high-level cognitive task is well beyond state-of-the-art AI, we show that AI can nevertheless assist the decision maker in making this determination. Specifically, the use of custom AI technology can aid the decision maker by (1) mining patent text to rapidly bring relevant information to the decision maker’s attention, and (2) suggesting simple inferences that can be drawn from that information.
We begin by summarizing the law related to patent claim indefiniteness. A summary of existing case law allows us to identify the types of information that can be relevant to the legal determination of indefiniteness. This in turn guides us in designing AI software that processes a patent’s text to extract information that can be relevant to the legal analysis of indefiniteness. Some types of relevant information include whether terms in a claim are defined in the patent, whether terms in a claim are not mentioned in the patent’s specification, whether the claim includes non-standard terms coined by the drafter of the patent, whether the claim relies on vaguely-specified measurements, and whether the patent’s specification discloses structure corresponding to a means-plus-function limitation.
The AI software rapidly processes a patent’s text and identifies information that is relevant to the legal analysis. The software then provides the human decision maker with this information as well as simple metrics and inferences, such as the percentage of claim terms that are defined explicitly or by example, and whether terms that are coined by the drafter should be defined or renamed. This can provide the user with insights about a patent much faster than if the user read the entirety of the patent to locate the same information unaided.
Moreover, the software can aggregate the various types of information to “score” a claim (e.g., from 0 to 100) based on its risk of being deemed indefinite. For example, a claim containing only defined terms and lacking any vague measurements would score much lower in terms of risk than a claim with terms that are not only undefined but do not even appear in the patent’s specification. Once each claim in a patent is assigned such an indefiniteness score, the patent itself can be given an overall indefiniteness score.
Scoring groups of patents in this manner has further advantages even if the scores are blunt measurements. AI software ranks a group of patents (e.g., all patents owned by a company) by indefiniteness scores. This allows a very large set of patents to be quickly searched for patents that have the highest, or lowest, indefiniteness score. The results of such a search could be, e.g., the patents to target for detailed review in litigation, post-grant proceedings, or licensing negotiations.
Finally, we present some considerations for refining and augmenting the proposed methods for partially automating the indefiniteness analysis, and more broadly other types of legal analysis
