Textualists complain that loose rules of statutory interpretation inject uncertainty and inconsistency into judicial resolutions of statutory ambiguity. But by employing an incomplete theory of meaning, pure textualists fail to shore up their decisions. And by disparaging the judgement necessary to navigate complex questions of meaning, they erode trust in the judicial process—the very foundation of the rule of law.
Digital surveillance tools are at the forefront of potential public health response strategies for the COVID-19 pandemic. The United States is in desperate need of a national-level contact tracing and exposure notification strategy to supplement traditional public health response efforts. This article addresses data privacy and security concerns, as well as epidemiological considerations, when developing digital contact tracing and exposure notification tools. It is both feasible and prudent that the United States establish a federal network for public health surveillance aided by digital tools, especially considering that waves of COVID-19 are expected to continue well into 2021 and while the threat of other emerging infectious diseases persists.
This Note examines the features and history of the three most commonly used tests for employee classification before advocating that the ABC test be more broadly adopted going forward.
Twenty states have passed criminal statutes aimed at reducing heat stroke deaths resulting from a child being left in a vehicle. This Note examines those statutes and the legal theories of punishment they rely upon. The Note proposes that state legislatures repeal these statutes and instead increase funding for programs aimed at expanding awareness and technological advances focused on preventing these tragedies.
It is a well-established rule that constitutional constraints governing public entities do not extend to private actors—until they do. If this principle seems unclear, it is largely due to the piecemeal jurisprudence that defines the “state action” doctrine. This doctrine applies when courts hold that a private actor is subject to constitutional constraints by virtue of the quasi-public role they have willingly accepted. In these situations, constitutional protections—and the resulting 42 U.S.C. § 1983 actions—may be available to those who demand relief. While questions of what entails a “state action” loom in the face of closely intertwined private and public actors, Halleck simplifies the inquiry with an updated definition of the types of private functions that now qualify as state action.
According to many constitutional lawyers and political scientists, the presidential administration of Donald Trump (for scholars on the left), or the response to that presidency (for scholars on the right) poses serious dangers to American constitutional democracy and the rule of law. However, this Essay argues that a more careful understanding of the contemporary dangers to the American rule of law are both broader-based and longer-term: inequality among the public, and epistemic polarization among the public as well as among legal elites (including constitutional law professors themselves), undermine the capacity of the American people to use the political tools available in our constitutional system to resist any power-grabbing executive, regardless of ideology. The rule of law conflicts of the Trump administration, while dangerous in their own right, are fundamentally symptoms of this broader political and legal crisis.
An employee’s overarching legal commitment to his or her employer is commonly known as the “duty of loyalty.” This lopsided duty of loyalty exacerbates the inordinate power that employers possess over their workers. We propose that the duty of loyalty owed by workers to their employers be made reciprocal: employers should also owe a general duty of loyalty and care towards their employees.
This Essay argues that the administrative state’s use of artificial intelligence (AI) creates concentrated, unchecked power at the agency leadership level. The Essay draws from Professor Jon Michaels’ theory of the administrative separation of powers, and it describes how AI in government disrupts this separation. To alleviate this concern, the Essay puts forward one modest proposal: Congress should amend federal public sector labor law to require collective bargaining over an agency’s decision to use AI.
The following essay was adapted from the authors’ comment submitted in opposition to the Trump Administration’s Proposed Rules Regarding the Frequency and Notice of Continuing Disability Reviews.
This Note discusses the history of the national dialogue regarding prosecutorial misconduct, analyzes recent state reforms, and proposes that New York’s standing Brady orders and prosecutorial conduct commission provide the blueprint for ushering in a new era of prosecutorial accountability.