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Volume 120 - Issue 4
Policing Agency Data Trusts
Policing agencies are indiscriminately collecting, retaining, and using vast quantities of personal data from people who are suspected of no unlawful conduct whatsoever. This has caused expressions of concern or caution from many quarters, including—notably—the Director of National Intelligence (DNI). In a declassified report, the Office of the DNI stated that massive amounts of data are being collected “on nearly everyone that is of a type and level of sensitivity . . . that could be used to cause harm to an individual’s reputation, emotional well-being, or physical safety.”
This practice of universal data collection presents a conundrum. As many have argued, it poses the risk of serious harms: violations of personal privacy and security, erroneous targeting of innocent individuals, racial bias, and even the threat that the data will fall in the hands of hackers or authoritarian leaders. At the same time, those who favor such collection maintain that the data, properly used and analyzed, holds out hope of enhancing public safety by locating serious law violators and preventing dangerous threats.
This Article offers up a novel solution to the conundrum posed by the collection, retention, and use of personal data: policing agency data trusts. Data trusts are a new form of legal instrument that allow data creators to instruct trustees on how their data may be used; the trustees ensure in turn the data is used in no other ways. There now is a small but growing body of literature—and even some experimentation—explaining how data trusts could be employed in the context of commercial data uses.
This Article turns the idea of data trusts to the problem of policing agency indiscriminate collection, retention, and use of personal data. Data that is collected would be held outside policing agency hands. Those agencies could query the collected data only according to legislative authorization and regulations established by independent data trustees. Requests would be vetted through data stewards, and only those requests consistent with governing law and the data trust rules would be permitted. Further, use of the data would not be limited to law enforcement. Rather, the data would be available to others to query—including defense counsel, and researchers who study policing and public safety. These data trusts would allow capturing any benefits of collection, while minimizing or mitigating entirely the harms and assuring a degree of democratic accountability.
Applying the Indian Commerce Clause to Indian Commerce
Indian country commerce generates tens of billions of dollars annually and is a constant source of litigation. These disputes typically revolve around jurisdictional conflicts: whether states, tribes, or both possess regulatory authority over the business operating in Indian country, particularly those involving non-Indians. Despite numerous court cases, no clear legal framework has emerged, creating pervasive uncertainty regarding fundamental issues, such as state taxation of tribal transactions and the proper forum for resolving Indian country contract disputes. Interestingly, these commercial cases overlook the Indian Commerce Clause—the constitutional provision designed to address such matters.
This Article argues the Indian Commerce Clause prohibits state regulation of Indian country commerce. The clause’s plain text and original understanding support this interpretation. While the Supreme Court departed from this understanding in the late 19th century, it has never adequately justified this shift. During the 1980s, the United States argued the Indian Commerce Clause bars state taxation of tribal commerce, and the Supreme Court rejected this argument with scant judicial reasoning. Consequently, courts continue to rely on ambiguous, fact-specific tests that undermine tribal sovereignty and economic development.
This Article proposes a revitalized application of the Indian Commerce Clause, advocating for a clear, constitutionally grounded framework. By categorically preempting state intrusion into Indian country commerce, this approach would provide the certainty necessary for tribal economic self-determination to flourish. This Article demonstrates how such a framework would resolve the current jurisdictional chaos, offering specific guidance for its implementation and ultimately promoting a more just and equitable relationship between tribes and states.
Electoral Due Process
Hyperpartisanship has hit century-long highs in American politics and is emboldening state government attempts to undermine election outcomes by using control over state lawmaking structure to strip away authority, and sometimes outright unseat, partisan opponents after they win elected office. Even as traditional norms against such moves have eroded, the Supreme Court has taken a pro-partisanship turn in removing judicial checks against such moves under equal protection and constitutional structure. This Article proposes shifting from challenges under those doctrines to a new approach under electoral due process for confronting this new generation of antidemocracy. Federal due process law restricts the government from committing by state law to a set of rules only to change the rules after the election has been held. On these terms, electoral due process similarly restricts the government from meaningfully stripping the authority of an elective office after the election, and from abusively expelling or impeaching the winning candidate after the election, as an antidemocratic means of undercutting the election result for partisan gain. The government commits to an allocation of government lawmaking authority dictated by the election result and must abide by that commitment, as a due process matter, even when a partisan opponent wins and assumes that authority. This Article explains the jurisprudential advantages of shifting from equal protection and constitutional structure to electoral due process as well as details the political context of hyperpartisanship and the multiplying threats to democratic elections.
The Federalism Canons as Ordinary Interpretation
Scholars remain generally skeptical of substantive canons of statutory interpretation even as courts continue to employ such canons in important cases. Unlike semantic canons, which help judges discern the best meaning of statutory text in context, substantive canons provide tiebreakers when the text is unclear or require special clarity in order for the text to perform certain functions. Among the substantive canons, the so-called “federalism canons” have been singled out for special scrutiny. The federalism canons are a family of canons that require courts to avoid interpreting an act of Congress to divest states of certain sovereign rights or powers—including their preexisting rights to sovereign immunity, to structure their own governments, and to exercise jurisdiction over transitory actions—unless the act does so in clear terms or by unavoidable implication. Such canons, critics charge, are incompatible with textualism because judges simply invented them as a way to promote judicially favored values (such as federalism) in disregard of the natural meaning of statutory texts. This charge, however, is based on a false premise. The federalism canons are not a novel judicial creation. They are specific applications of well-established rules of interpretation older than the Constitution itself. These rules instruct courts not to read a legislative act to divest a government of a right or power unless the terms of the act do so clearly or by unavoidable implication. Understood against this background, the traditional federalism canons are fully consistent with mainstream textualism. Like other long-standing interpretive conventions, these canons reflect background context that is an essential part of ordinary interpretation. In applying the federalism canons, courts do not violate—but uphold—their constitutional role as faithful agents of Congress. Properly understood, judicial adherence to such canons reinforces the Constitution’s allocation of powers both between the political branches and the courts, and between the federal government and the states.
The Role of the U.S. State Department as an Amicus in Foreign Policy Abstention Analysis
Foreign policy abstention is a novel and unsettled doctrine in international litigation. Unlike other established international litigation abstention doctrines, foreign policy abstention permits courts to decline jurisdiction when adjudication implicates significant foreign policy concerns. First invoked in 2004, the doctrine has since appeared sporadically in case law, most recently in the Eighth Circuit’s decision in Reid v. Doe Run Resources. Yet, its analytical framework remains muddy and amorphous, leading to inconsistent judicial application.
This Note examines one critical factor courts consider when determining whether to apply the foreign policy abstention: the strength of U.S. foreign policy interests in the litigation. In making this determination, courts value the U.S. State Department’s views, expressed through amicus briefs or Statements of Interest (SOIs). Courts have interpreted the State Department’s failure to file a brief to mean that the U.S. government does not have strong foreign policy interests in the litigation. And because the Department is sporadic and inconsistent in its filing practices, the judiciary’s inferences from the Department’s silence have exacerbated doctrinal muddiness in foreign policy abstention.
This Note argues that courts’ interpretations of State Department silence may not accurately reflect the U.S. government’s interests, as the Department’s inaction may stem from various reasons unrelated to the absence of foreign policy interests, including a mere lack of knowledge that the litigation exists at all. To address this issue, this Note discusses two potential solutions. It first considers an agency-implemented policy requiring the State Department to file an SOI in every case invoking foreign policy abstention. This, however, would place an undue burden on the Department. A more practical alternative is the adoption of a procedural rule mandating that parties notify the State Department when they invoke foreign policy abstention, ensuring the State Department is aware of the litigation and provided with an opportunity to speak. Under this framework, if the Department remains silent after notification, courts could more justifiably presume that U.S. foreign policy interests are weak. This approach offers a pragmatic framework that balances the judiciary’s need for clarity with the State Department’s administrative constraints.
By clarifying the State Department’s role and the weight of its statements, this approach seeks to promote consistency, transparency, and analytical rigor in invocations of the foreign policy abstention doctrine.
The Establishment that Time Forgot: The Historical Understanding of Religious Offenses and Their Unconstitutionality in Modern Law
This Note argues that religious offenses, meaning laws which penalize conduct for religious purposes, should be barred by the Establishment Clause of the Constitution, as the Clause was interpreted in Kennedy v. Bremerton School District. This is because Kennedy interpreted the Establishment Clause to prohibit each of the several types of laws which early Americans associated with religious establishment—the historical practice wherein early states would adopt a religion as the state religion and pass various types of laws for its support. And religious offenses, this Note argues, were amongst the types of laws which early Americans so associated with religious establishment. This Note performs an extensive analysis of historical evidence to support this conclusion, relying upon early American statutes and the writings of William Blackstone, Joseph Story, and Richard Mentor Johnson. Because early Americans understood religious offenses to be linked to religious establishment, this Note argues that the Establishment Clause should also prohibit contemporary religious offenses, which similarly penalize conduct for religious purposes. Such contemporary offenses include, amongst others, laws penalizing the teaching of evolution in public schools.