Amendment Doctrine Research Articles

Public Perceptions Can Guide Regulation of Public Facial Recognition

Facial recognition technology is changing how people pass through customs at airports, check in at schools, and move anonymously in public spaces. Yet despite these transformations, its use by the government is largely unregulated. This Article informs the policy and doctrinal debates about facial recognition by presenting a public attitudes perspective. These three novel empirical studies show the nuanced views that Americans hold about government use of facial recognition. The data reveal that people are generally comfortable with the government using facial recognition to investigate serious crimes, enhance the security of controlled spaces like airports and schools, and increase the efficiency of identity verification in some contexts. But people are often not comfortable with casual governmental facial recognition use in public spaces. This pattern of strong comfort for tailored uses persisted even when, in a second study, participants were primed with negative information about the accuracy of facial recognition. Here I explore the implications of these results for both current Fourth Amendment doctrine as well as future legislative reform, promoting a balanced approach that allows tailored use of facial recognition while regulating its purposes.

Escaping Fourth Amendment Doctrine After Jones: Physics, Law, and Privacy Protection

Escaping Fourth Amendment Doctrine After Jones: Physics, Law, and Privacy Protection

Quasi-State Agents in First Amendment Doctrine

Quasi-State Agents in First Amendment Doctrine

Warranted Exclusion: A Case for a Fourth Amendment Built on the Right to Exclude

Searches intrude; fundamentally, they infringe on a right to exclude. So that right should form the basis of Fourth Amendment protections. Current Fourth Amendment doctrine—the reasonable expectation of privacy test—struggles with conceptual clarity and predictability. The Supreme Court’s recent decision to overturn Roe v. Wade casts further doubt on the reception of other privacy-based approaches with this Court. But the replacement approach that several Justices on the Court favor, what I call the “maximalist” property approach, risks troublingly narrow results. This Article provides a new alternative: Fourth Amendment protection should be anchored in a flexible concept derived from property law—what this Article terms a “situational right to exclude.” When a searchee has a right to exclude some law-abiding person from the thing to be searched, in some circumstance, the government must obtain a warrant before gathering information from that item. Keeping the government out is warranted when an individual has a situational right to exclude; it is exactly then that the government must get a warrant.

The Privacy Limits of Transacting in Bitcoin

The Bitcoin blockchain, a prime example of disruptive technology, has fundamentally altered the way various industries approach remote transactions. Bitcoin grants privacy to its users by anonymizing public keys, provides autonomy by eliminating the need for trusted third parties, and maintains transparency through its public disclosure protocol. Bitcoin is an innovative manifestation of the Fourth Amendment ideals of security and autonomy. It is, thus, no surprise that the Bitcoin blockchain presents unprecedented Fourth Amendment challenges for courts to consider.
 In United States v. Gratkowski, the Fifth Circuit addressed the novel issue of whether Fourth Amendment protections extend to an individual’s Bitcoin transactions. Notably, the court was the first to find that an individual does not have a privacy interest in their information located directly on the Bitcoin blockchain. However, the Fifth Circuit applied inconsistent and flawed reasoning in reaching this decision, demonstrating a fundamental misunderstanding of Bitcoin and its users.
 Accordingly, this Note argues that the Gratkowski decision should be applied narrowly and with caution, especially considering the Supreme Court’s warnings against the incompatibility of current Fourth Amendment doctrine with the digital age. It then suggests implementing a modified reasonable expectation-of-privacy standard, supplementing the current standard with an additional inquiry into what information an individual disclosed when initiating a transaction. This modified standard would preserve the integrity of Bitcoin, while simultaneously articulating a proper framework for assessing privacy concerns in the context of Bitcoin and blockchain technology.

An Argument Against Unbounded Arrest Power: The Expressive Fourth Amendment and Protesting While Black

Protesting is supposed to be revered in our democracy, considered “as American as apple pie” in our nation’s mythology. But the actual experiences of the 2020 racial justice protesters showed that this supposed reverence for political dissent and protest is more akin to American folklore than reality on the streets. The images from those streets depicted police officers clad in riot gear and armed with shields, batons, and “less than” lethal weapons aggressively arresting protesters, often en masse. In the first week of the George Floyd protests, police arrested roughly 10,000 people, and approximately 78 percent of those arrests were for nonviolent misdemeanor offenses or criminal violations. Moreover, troubling figures regarding the racial breakdown of protest-related arrests, along with anecdotes from activists, suggest that just as with routine policing, the experiences of Black and white people differ during protests—even when they protest side by side—with police potentially targeting Black activists for arrest. This Article exposes how police officers’ easy access to a wide arsenal of criminal charges serves to trample on expressive freedoms and explains how a new and clearer understanding of the Fourth Amendment’s application to expressive conduct should curb the police’s seemingly unbounded power to arrest protesters. In Part I of this Article, I revisit and review the roots and rationale of the Expressive Fourth Amendment doctrine, which posits that there is an expressive component to Fourth Amendment protection. In Part II, I discuss the criminal statutes that police often use to make arrests during protests and then focus more narrowly on the arrests in New York City in the early days of the George Floyd demonstrations, including the racial makeup of arrestees. In Part III, I explain how the presiding understanding of the Fourth Amendment places minimal limits on a police officer’s ability to arrest, regardless of an individual’s engagement in expressive political conduct. Thereafter, I describe how the Expressive Fourth Amendment should apply to arrests and serve to curtail an officer’s ability to engage in warrantless arrests of protesters for nonviolent misdemeanors.

Another Katz Moment?: Privacy, Property, and a DNA Database

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The understanding of these words seems to shift as new technologies emerge. As law enforcement’s arsenal of surveillance techniques has grown to include GPS tracking, cell phones, and cell site location information (CSLI), the Supreme Court has applied Fourth Amendment protections to these modern tools. Law enforcement continues to use one pervasive surveillance technique without limitations: the routine collection of DNA. In 2013, the Supreme Court in Maryland v. King held that law enforcement may routinely collect DNA upon arrest for a serious crime. This Note discusses the routine collection of DNA and how it ought to be situated within evolving Fourth Amendment doctrine. Given the nature of DNA and growing DNA databases, law enforcement use of DNA—like its use of other surveillance technologies—should be limited by the Fourth Amendment. DNA collection may not fit neatly within Fourth Amendment jurisprudence, but neither did cell phones, GPS tracking devices, or CSLI when the Court chose to include them under such protections.

Why There? Explanatory Theories and Institutional Features Behind Unconstitutional Constitutional Amendments in Asia

This chapter reflects on the various chapters of the book. In so doing, it proposes numerous alternative and mutually reinforcing theories behind the adoption of the unconstitutional constitutional amendment doctrine in Asia: higher law background; correcting flaws in the democratic process; political and policy insurance and hegemonic preservation. It also reviews the recent debates in Israel, and suggests various institutional features that can explain why doctrines of implied limitations on constituent power, such as the Basic Structure Doctrine, were developed in specific jurisdictions: flexibility of the amendment procedure, party or executive dominance; the political and amendment culture, and the absence of effective supra-national institutions.

To Reform Social Media, Reform Informational Capitalism

Calls for altering First Amendment protections to deal with problems caused by social media are often misdirected. The problem is not First Amendment doctrines that protect harmful or false speech. The problem is the health of the digital public sphere: in particular, whether the digital public sphere, as currently constituted, adequately protects the values of political democracy, cultural democracy, and the growth and spread of knowledge. Instead of tinkering with First Amendment doctrines at the margins, we should focus on the industrial organization of digital media and the current business models of social media companies. Only a handful of social media companies currently dominate online discourse. In addition, the business models of social media companies give them incentives to act irresponsibly and amplify false and harmful content. The goals of social media regulation should therefore be twofold. The first goal should be to ensure a more diverse ecology of social media so that no single company’s construction or governance of the digital public sphere dominates. The second goal should be to give social media companies — or at least the largest and most powerful ones — incentives to become trusted and trustworthy organizations for facilitating, organizing, and curating public discourse. Competition law, consumer protection, and privacy reforms are needed to create a more diverse and pluralistic industry and to discourage business practices that undermine the digital public sphere. Given these goals, the focus should not be on First Amendment doctrines of content regulation, but on digital business models. To the extent that First Amendment doctrine requires any changes, one should aim at relatively recent decisions concerning commercial speech, data privacy, and telecommunications law that might make it harder for Congress to regulate digital businesses.

Assuming Access to Professional Advice.

Access to reliable health advice can make the difference between life and death. But good advice is hard to come by. Within the confines of the professional-client or doctor-patient relationship, the First Amendment operates in a way that protects good and sanctions bad advice. Outside of this relationship, however, the traditional protections of the First Amendment prohibit content- and viewpoint discrimination. Good and bad advice are treated as equal. A core assumption of First Amendment theory is the autonomy of speakers and listeners. Another assumption, as this Article demonstrates in the health context, is the availability of access to professional advice. This assumption, however, is erroneous because access to health advice in fact is unevenly distributed.This Article argues that assuming access to professional advice creates indefensible inequality. Lack of access to expert advice puts some listeners at much higher risk than others. Current First Amendment doctrine is largely unproblematic for those who can afford expert advice, and makes expert advice much costlier where health provider access is needed to obtain good advice. Those who lack access must place a higher degree of trust in widely-available information because they have no more reliable alternative. In other words, First Amendment doctrine places a higher burden on those who can least afford expert advice and who are most dependent on experts in public discourse.

Law of the Gun: Unrepresentative Cases and Distorted Doctrine

There is a familiar saying, “If all you have is a hammer, everything looks like a nail.” The so-called Law of the Hammer takes a distinctive form in adjudication. If all judges see is one repeating fact pattern for a given area of law, they might perceive it as archetypical and build the law around it. If that fact pattern does not accurately reflect the field, however, the result can be analytical distortion in terms of both the choice of doctrine and its implementation. This Article uses Second Amendment jurisprudence to illustrate this phenomenon. It reveals how District of Columbia v. Heller constitutionalized a policy area far broader than most appreciate, one that involves not only guns but various other weapons. The Article then shows how litigation fails to reflect that breadth. Guns are just one category of “arms” that most Americans choose not to own or carry for self-defense, but guns alone saturate Second Amendment case law. Non-gun arms are out of view when judges establish and apply Second Amendment doctrine. The Article contends that this gun-centricity, by obscuring the ways Americans exercise post-Heller Second Amendment rights, has led judges to exaggerate burdens, misread history, and espouse short-sighted doctrine to implement the right to keep and bear arms. More generally, the Second Amendment case study in this Article exposes litigation circumstances that create a heightened risk of such distortion and proposes possible solutions.

Assuming Access to Professional Advice

Access to reliable health advice can make the difference between life and death. But good advice is hard to come by. Within the confines of the professional-client or doctor-patient relationship, the First Amendment operates in a way that protects good and sanctions bad advice. Outside of this relationship, however, the traditional protections of the First Amendment prohibit content- and viewpoint discrimination. Good and bad advice are treated as equal. A core assumption of First Amendment theory is the autonomy of speakers and listeners. Another assumption, as this Article demonstrates in the health context, is the availability of access to professional advice. This assumption, however, is erroneous because access to health advice in fact is unevenly distributed. This Article argues that assuming access to professional advice creates indefensible inequality. Lack of access to expert advice puts some listeners at much higher risk than others. Current First Amendment doctrine is largely unproblematic for those who can afford expert advice, and makes expert advice much costlier where health provider access is needed to obtain good advice. Those who lack access must place a higher degree of trust in widely-available information because they have no more reliable alternative. In other words, First Amendment doctrine places a higher burden on those who can least afford expert advice and who are most dependent on experts in public discourse.

Political Conduct and the First Amendment

The First Amendment’s primary constitutional role is to defend our nation’s commitment to the collective project of self-governance. Sadly, a singular preoccupation with speech in First Amendment jurisprudence has culminated in a construction of the amendment that operates to the detriment of democracy. Attached to a thin, discursive conception of self-governance that emphasizes political discussion over political participation, the Court fails to shield conduct that is vital to political accountability, responsiveness, and change—even when explicitly protected. But contemporary First Amendment doctrine does more to undermine democracy. It also undermines the capacity of legislatures to serve their most basic constitutional function—reaching provisional decisions on contested values. None of this is necessary. Properly construed and consistent with its classic liberal commitments, the First Amendment can do better to promote self-governance and to protect the democratic process. This Article explains how a more nuanced account of the First Amendment’s relationship to self-governance can get us there. The three main pillars of the new account are: protection for political conduct; recognition of a strong anti-entrenchment norm; and a better appreciation of the significance of drawing a distinction between the domain of governance and the domain of politics in First Amendment jurisprudence.

Disability's Fourth Amendment

The Supreme Court’s Fourth Amendment jurisprudence is under-theorized in terms of issues relating to disability. Across the lower courts, although disability features prominently in excessive force cases, typically involving individuals with psychiatric disabilities, it features less prominently in other areas of Fourth Amendment doctrine. Similarly, scholars have yet to address substantively how the vast scope of police discretion the Fourth Amendment affords renders individuals with disabilities vulnerable to policing and police violence. Although there has been robust engagement with theories of criminalization and social control in critiques of Fourth Amendment doctrine that address race and racism, thus far, only limited engagement with disability and its intersections with other current and historically marginalized subordinated identities has occurred. This article centers disability as a lens for analysis in Fourth Amendment jurisprudence. In the article, I discuss the ways in which disability mediates interactions with law enforcement and how Fourth Amendment doctrine renders disabled people vulnerable to police intrusions and police violence. More specifically, the focus of my critique is on the Terry doctrine, consensual encounters, consent searches, and the objective reasonableness standard under Graham. Applying a disability and critical race lens to each these doctrines, taken together, demonstrates how Fourth Amendment doctrine both fails to adequately protect the constitutional rights of disabled people and reinforces a “normative bodymind” by rendering vulnerable to police surveillance, suspicion, searches, and force those persons whose physical and psychological conditions, abilities, appearances, behaviors, and responses do not conform to the dominant norm. By focusing in on how Fourth Amendment doctrine both erases disability and fails to adequately protect disabled people’s privacy and security interests, I suggest how the doctrine itself renders disabled people more vulnerable to policing and police violence.

Law in the Shadows of Confederate Monuments

Hundreds of Confederate monuments stand across the United States. In recent years, leading historians have come forward to clarify that these statues were erected not just as memorials but to express white supremacist intimidation in times of racially oppressive conduct. As public support for antiracist action grows, many communities are inclined to remove public symbols that cause emotional harm, create constant security risks and dishonor the values of equality and unity. Finding a lawful path to removal is not always clear and easy. The political power brokers who choose whether monuments will stay or go often do not walk daily in their shadows. In recent years, eight Southern state legislatures enacted monument preservation legislation designed to thwart local removal efforts. These laws have prompted bitter conflicts, sometimes leading angry citizens to topple massive stone or bronze monuments themselves. The challenges present fertile ground for innovative lawyering. Creative applications of state property, nuisance and contract laws have led to removals notwithstanding the prohibitions of state preservation laws. When state law blocks removal or contextualization, communities may look to federal law as a source for taking antiracist action. First Amendment doctrine governing expressive speech has not provided a fruitful solution. Despite the expressive nature of Confederate monuments, efforts to weaponize the First Amendment by both sides of the monument debate have failed, largely due to the government speech doctrine. Given the age and quality of most monuments, copyright law is also not likely to provide an effective federal claim. The Federal Civil Rights Act offers an untapped but promising foundation for resolving these controversies. Title VI and Title VII could be used to challenge monuments that contribute to a hostile work or educational environment. Federal civil rights claims would supersede state legislation enacted to prevent removal of racially hostile symbols. Even when state law does not present removal barriers, communities who seek to take meaningful anti-racist action could ground their initiatives in the Civil Rights Act’s core value of equality. For all who are confronting this issue, this Article seeks to provide a legal and strategic framework for acknowledging history while reclaiming the symbolic heart of our public spaces and a means to assure that the symbols we elevate affirm shared contemporary values.

Getting to Privacy More Reasonably: A Partial Property Rights Theory of the Fourth Amendment

Fourth Amendment doctrine has struggled to meet its two objectives: providing meaningful restraints on government action and a conceptually workable basis for deciding what those restraints are. This doctrine’s evolution has often placed these objectives at odds. The prevailing reasonable expectation of privacy test often gets intuitively good results at the expense of conceptual clarity, while the older, property-based approach offers clearer tests but risks being ascetic in application. This Article provides a new alternative: Fourth Amendment protection should be anchored in a flexible conception of property rights—what this Article terms a “situational right to exclude.” Note: attached draft is the draft that will be workshopped at the 2021 Privacy Law Scholars Conference.

The causes and consequences of a judicialized peace process in Colombia

Abstract This article focuses on one striking feature of the Colombian peace process with the Revolutionary Armed Forces of Colombia—People’s Army (FARC): a very high level of judicialization, as shown through the many decisions issued by the Colombian Constitutional Court that have examined core elements of the process. It argues that this high level of judicialization is explained not only by the generally activist role conception of the Court, but also by specific doctrines it developed, including a robust incorporation of international law and an unconstitutional constitutional amendment doctrine, which essentially made judicialization inevitable. Since these doctrinal devices are spreading, they may portend increasingly judicialized peace processes in other countries as well. Normatively, judicialization of ongoing peace processes raises clear risks, particularly of destabilization. But for the most part, the Colombian Constitutional Court has avoided these risks and instead has stabilized the process in important ways, by insulating it from both international pressure and domestic political shifts. The Court has also injected important values into the process, especially regarding the rights of victims of the internal armed conflict. Thus, the case study demonstrates that at least under certain conditions, judicialization may have a beneficial impact on the substance and durability of peace processes.

The Cambridge Companion to the First Amendment and Religious Liberty. Edited by Michael D. Breidenbach and Owen Anderson

This recent volume from the Cambridge Companions to Law offers a provocative and wide-ranging series of essays on the general topic of religious freedom. The essays are divided into three sections: Philosophical Foundations; Historical Interpretations; and Law, Politics, and Economics. They are engaging, well-written, and will serve as a valuable introduction for students as well as being a resource for scholars of law and religion, whether in the United States or abroad. At the outset, a caveat is in order as (with exceptions, including chapters by Zoë Robinson and Vincent Phillip Muñoz) the primary focus of the essays is more on religious liberty than on the First Amendment jurisprudence. Careful historical, originalist analyses of the First Amendment are presented in chapters on its intellectual foundations (Muñoz) and political history (Donald Drakeman, Chris Beneke, and Michael Breidenbach), and the development of the First Amendment doctrine in the U.S. Supreme Court is addressed by Robinson, who argues that the constitution historically has privileged the religious majority over minorities. However, this multidisciplinary project ranges afield into abstract theory in the opening chapters and into social science as well, with an economic model of the development of religious freedom advanced by Anthony Gill in the third section.

O'Connor's Canons: the Professional Responsibility Jurisprudence of Justice Sandra Day O'Connor

Justice Sandra Day O’Connor came to the Supreme Court at a time of tremendous change in the legal profession. With the development of commercial free speech doctrine, lawyers were permitted to advertise their services. Justice O’Connor vigorously opposed this development because of the potential legal advertising had for damaging the ethical standards of the profession. She believed that lawyers, because of their privileged position in society, had a higher moral duty to society as officers of the court. Moreover, she asserted that ethical standards should be established at the state level and the Court should defer to the states in this regard. Justice O’Connor wrapped her professional ideals around the belief that our majestic law steeped in traditions of freedom, democracy and liberty was to be maintained by lawyers with the highest commitment to professional duty and a willingness to sub serve their own financial and personal interests to the needs of the clients. This article will consider the constitutional jurisprudence of Justice Sandra Day O’Connor in the arena of professional responsibility with a focus on how she expressed her ethical canons in light of First Amendment Doctrine as applied to commercial free speech. Her views are immensely relevant to current discourse on professionalism.

Digital Disease Surveillance

The fight against future pandemics will likely involve digital disease surveillance: the use of digital technology to enhance traditional public-health techniques like contact tracing, isolation, and quarantine. But legal scholarship on digital disease surveillance is still in its infancy. This Article fills that gap. Part I explains the role that digital disease surveillance could have played in responding to coronavirus, and the role it likely will play in future infectious-disease outbreaks. Part II explains how the “special needs” exception to the Fourth Amendment’s warrant requirement permits almost any rationally designed disease surveillance program. Part III suggests safeguards beyond what Fourth Amendment doctrine currently requires that could protect rights without diminishing surveillance effectiveness, including: review for effectiveness and equality, procedural requirements, and periodic legislative authorization. Part IV proposes a mixed standard for judicial review: courts should require these safeguards under an evolving understanding of Fourth Amendment reasonableness while tempering their review with deference to the political branches. Part IV concludes by outlining how the doctrinal evolution spurred by digital disease surveillance programs—the development of a “special needs with bite” standard—might advance a key research agenda in criminal procedure: how to apply the Fourth Amendment to modern, data-driven surveillance regimes.