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Foreword: 2024 Ira C. Rothgerber Jr. Conference: Artificial Intelligence and the Constitution
Get PDFFor the first time, the Byron R. White Center for the Study of American Constitutional Law and the Silicon Flatirons Center for Law, Technology, and Entrepreneurship came together to hold a joint conference on Artificial Intelligence (AI) and the Constitution. We decided to merge our annual conferences to explore one of the most important and consequential intersections of our time: AI and the Constitution—topics we study and deeply care about. During this time of rapid and profound technological transformation, it is even more imperative that we come out of our academic silos and work together.
The partnership was destined. The Byron R. White Center believes that an informed and engaged community is essential to our constitutional democracy. As we share on our website, a core piece of our mission is to “support excellence in Constitutional legal scholarship . . . and expand public knowledge and informed discussion about the Constitution.”Similarly, the mission of Silicon Flatirons includes initiating, sustaining, and elevating the conversation about technology law, policy, and entrepreneurship. Our joint AI and the Constitution conference aimed to do just that
The Eighth Amendment’s Paper Tiger: Pain, Executions, and the Cruel and Unusual Punishment Clause
Get PDFThe Eighth Amendment prohibits “cruel and unusual punishments.” This prohibition applies to the way states carry out executions: states may impose capital punishment but may not do so in a way that is unconstitutionally cruel. Over a trilogy of cases that began with Baze v. Rees in 2008, the Court developed a test for analyzing whether a state’s proposed method of execution violated the Eighth Amendment. Under Baze/Glossip/Bucklew, a person challenging a state’s method of execution must show that the method of execution poses a severe risk of “superadded” pain and suffering that can be alleviated by a readily available alternative that would substantially reduce that risk and that a state has refused to adopt the alternative without a legitimate penological reason. Despite significant evidence about pain and suffering, the Supreme Court has never held that a state’s chosen method of execution or execution protocol violates the Eighth Amendment.
The Baze/Glossip/Bucklew test is, like many aspects of capital punishment, a contradiction. It presumably offers an objective way to determine when pain associated with executions is unconstitutional. Despite the purported centrality of pain to this test, pain is no more than a paper tiger. Setting unconstitutional pain as the Eighth Amendment standard for executions appears to offer constitutional protection to people facing executions, but it is ultimately a toothless standard. Instead, Baze/Glossip/Bucklew is a results-oriented test that evades substantive constitutional analysis and minimizes the significance of pain in favor of finality. Courts have abdicated their constitutional role by developing and applying an unworkable Eighth Amendment analysis. Even a proponent of capital punishment should recognize that there is something wrong with that.
Part II surveys judicial approaches to method-of-execution challenges from the 1800s to the present day. Part III identifies critical flaws in the Baze/Glossip/Bucklew test and its implementation to demonstrate why the test does not adequately address pain, even though pain is the primary standard courts use to determine if a method of execution violates the Eighth Amendment. Part IV addresses the justifications for this test: finality, morality, and legitimacy. These justifications undermine the constitutional significance of pain and result in an unworkable test. The application of this unworkable test reinforces state sovereignty, legitimacy of state punishment practices, and the Supreme Court’s authority by undermining constitutional values that counsel against the exercise of punishment as power. This Article concludes that recognizing the limits of the current Eighth Amendment analysis offers new opportunities to reexamine Eighth Amendment cruelty and engage further with the moral questions surrounding state punishment and killing
Riding on Horseback to the Moon: Consent Searches in the Age of Smartphones and Digital Tracking
Get PDFIn 2014, when the Supreme Court ruled in Riley v. California that police must get a warrant before conducting a search of a cell phone, Chief Justice John Roberts described comparing a search of data on a cell phone to a search of other physical items as “like saying a ride on horseback is materially indistinguishable from a flight to the moon.” A decade later, an overwhelming majority of Americans carry cell phones that contain an ever-expanding set of data showing their habits, routines, and the minutiae of their everyday lives, offering a potential wealth of information to law enforcement conducting criminal investigations.
This information can be accessed through data extraction, whereby forensic tools are used to retrieve a copy of all data stored on a cell phone, including data not easily accessible to the user themselves. Courts are increasingly recognizing that, because of the breadth of potential information easily available from cell phones, warrants to search such devices need to be more limited in scope. Searches based upon the consent exception to the Fourth Amendment’s warrant requirement are, however, frequently the means used to obtain the same, or greater, access to cell phones as a court might grant through a warrant. Consent searches of cell phones and the data they contain have yet to be subject to either the judicial or scholarly examination they deserve.
This Article is the first to identify and provide an in-depth examination of the issues presented by consent searches of cell phones in the data extraction age. These issues involve questions relating to the scope of consent and how and when the data from cell phone extractions is accessed and analyzed. This Article ultimately argues that in a world where the landscape of technology and data storage is continually and rapidly evolving, making it impossible for the average cell phone user to know all the information that can be obtained from their device via data extraction, truly voluntary consent to cell phone searches is impossible. Accordingly, consent searches of cell phones utilizing extraction technology should no longer be permitted under the Fourth Amendment
Data Privacy at the Border: How to Balance National Security Concerns and Privacy Interests When Conducting Forensic Border Searches of Electronic Devices
Get PDFDo you know where your phone is? Can you describe the last five pictures in your camera roll? How many websites have you visited this month? Cell phones are an extension of our person and contain some of our most private data: location, banking, loved ones, sleep statistics, reproductive information, and more. As our technology develops, so too should our laws. This Note explores the lack of privacy protections at the U.S. border and how susceptible our data is to a government search. A Supreme Court ruling recognizing the unique piece of property a cell phone represents, even at a U.S. border, is essential to balance our national security concerns and privacy interests
Policing as General Warrants
Get PDFThe drafters of the Bill of Rights and its proponents envisioned a document constitutionalizing protections against some of the worst abuses they had experienced under English rule. Prominent businessmen—many of them engaged in smuggling— found their homes ransacked in search of contraband on flimsy evidence and without any reason given for the disruption of their business and consequent enrichment of government agents. The Fourth Amendment addressed the use of general warrants and writs of assistance to allow government agents to conduct broad searches with limited scrutiny. In the early years of the Constitution, this had little practical effect, because public safety and criminal investigations were largely left to the states. State responses to criminal behavior were the province of institutions with limited powers, such as sheriffs and watches, though slave patrols in the southern states exercised broader search and seizure powers. These state institutions rarely provoked challenges under state constitutional protections, leaving the limits of both state and federal constitutional protections untested.
While the Fourth Amendment’s protections were not initially read to apply against the states, the Fourteenth Amendment aimed to extend the full range of constitutional rights to all citizens, including newly free Black Americans. In practice, the novel institution of professional policing emerged in the decades before the Civil War as a response to perceived disorder and criminal behavior. Police became more proactive in cities to suppress labor unrest and organized crime, conducting investigations on their own initiative long before any evidence was presented to a judicial officer. Anti-union policing saw government agents and their business allies develop undercover tactics and engage in mass violence in the name of law and order. Few targets of professional policing’s broader search and seizure powers challenged their arrests, convictions, or assaults under the Reconstruction Amendments in the Nineteenth Century. By the time courts effectively applied the Fourth Amendment against the states, police forces had essentially assumed the powers of the slave patrols against all free people.
The modern practice of policing by means of roving, armed government agents conducting frequent, warrantless searches replicates the abuses of general warrants and writs of assistance. The application of those powers to undermine democratic remedies for economic injustices replicates the abuses of the slave patrols. This Article takes up the novel argument that in doing so, modern policing violates the Fourth and Fourteenth Amendments. While constitutional rights are necessarily open to interpretation by the courts, they should never be construed to provide less protection than they did when instituted. This Article advances the abolition constitutionalist proposition that the tools necessary to enact many of police abolition’s goals already exist within the Constitution. Reversing constitutional law’s historical errors to restore the common-law protections embodied in the Fourth Amendment would strip police of their slave patrol powers
Religious Exemptions to Anti-Discrimination Law: Children\u27s Rights in the Constitutional Calculus
Get PDFIncreasingly, religious actors in the public sphere--whether in the provision of goods and services (Masterpiece Cakeshop) or in government contracting (Fulton)--are simply invoking a person\u27s sexual orientation as inconsistent with their religious tenets to benefit from a legal doctrine that shields them from the requirement that they offer an underlying rationale for LGBTQ discrimination. Over the past decade, we have filed amicus briefs in United States Supreme Court cases advancing children\u27s constitutional rights, including briefs providing a check on these religious-based arguments when they adversely impact children\u27s rights in the familial and child regulation contexts and equal access to the public resources. In our brief in Fulton v. Philadelphia, we highlighted how the categorical exemption courts have carved out for religious actors performing government duties gives legal effect to private biases at the expense of children and in contravention of their status as constitutional rights bearers. Our most recent amicus brief in St. Mary Catholic Parish v. Roy extends this argument into the education sphere which, like the foster care system at issue in Fulton, is a uniquely child-centered context and one in which children\u27s constitutional rights have been historically acknowledged under state and federal law
Flower Arrangement
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Faculty Cards, Brochures, and Tumblers
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Faculty Publications Display
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The Inconvenience Doctrine
No full textIn a nation of stark inequalities, the Roberts Court is often portrayed as siding with the wealthy and powerful. Many scholars argue that the Court has abandoned legal principles altogether and instead simply chooses winners and losers based on the conservative majority’s political agenda. Meanwhile, scholarly examinations of the legal reasoning underlying the Court’s most impactful decisions are largely confined to specific subject areas. Such compartmentalized analyses, though, overlook broader patterns in the Court’s rulings that transcend substantive legal boundaries.
This Article bridges the gap in these parallel conversations by connecting the Roberts Court’s reasoning across many legal fields with its perceived ideological biases. In making this connection, the Article reveals the Court’s use of a consistent but problematic framework, which I term “the inconvenience doctrine.” Under the inconvenience doctrine, the Court invalidates nearly any limitation on what it views as the full exercise of “core rights,” while permitting the imposition of “mere inconveniences” that make exercising a right more difficult but not impossible. Although facially neutral, the inconvenience doctrine punishes marginalized communities, who lack the resources to easily circumvent inconveniences; and it rewards the wealthy and powerful, who are uniquely able to exercise the outermost limits of rights the Court vigilantly protects. The Court’s trivialization of inconveniences is rooted in free-market economic theory, which prizes profit-seeking while rationalizing away harmful collateral effects on workers, consumers, and bystanders. But the adoption of economic theory as legal doctrine is inconsistent with the Court’s purported adherence to American “history and tradition.” This Article mines Founding-era writings, speeches, and judicial opinions to demonstrate that the Framers viewed minimization of public inconveniences as a central function of government, with courts serving as a crucial safeguard.
The inconvenience doctrine thus amounts to a harmful and ahistorical shortcut around the judicial responsibility to appreciate and give weight to the real-world consequences of inconveniences. By calling out the Roberts Court’s approach, this Article provides a foundational first step toward a more pragmatic and equitable judicial philosophy