Network Accountability for the Domestic Intelligence Apparatus

Danielle Keats Citron and Frank Pasquale

Volume 62, Issue 6, 1441-1494

A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration that generate and share intelligence and information. Several fusion centers have generated controversy for engaging in extraordinary measures that place citizens on watch lists, invade citizens’ privacy, and chill free expression. In addition to eroding civil liberties, fusion center overreach has resulted in wasted resources without concomitant gains in security.While many scholars have assumed that this network represents a trade-off between security and civil liberties, our study of fusion centers suggests these goals are, in fact, mutually reinforcing. Too often, fusion centers’ structure has been based on clever legal strategies for avoiding extant strictures on information sharing, rather than on objective analysis of terror threats. The “information sharing environment” created by fusion centers has short-circuited traditional modes of agency accountability. Our twentieth- century model of agency accountability cannot meaningfully address twenty-first-century agency coordination.A new concept of accountability—“network accountability”—is needed to address the shortcomings of fusion centers. Network accountability has technical, legal, and institutional dimensions. Technical standards can render data exchange between agencies in the network better subject to review. Legal redress mechanisms can speed the correction of inaccurate or inappropriate information. A robust strategy is necessary to institutionalize these aspects of network accountability.

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Severability of Statutes

Tom Campbell

Volume 62, Issue 6, 1495-1526

Courts legislate when they engage in “severability analysis,” allowing part of a law to continue in force after having struck down other parts as unconstitutional. This is flawed for the same reason that the legislative veto and the executive line-item veto are flawed. All involve creating a legislative outcome without the joint approval of both houses and the executive. The practice derives from an analogy to contract enforcement, where a court will try to preserve part of a contract when the rest is unenforceable. However, the analogy is imperfect because Congress or the state legislature remains in a position to pass a new law, unlike the parties to a contract who might not be in a position to create a new bargain.

No appeal to convenience should allow severability practice to continue, any more than it would have allowed the legislative veto to continue after INS v. Chadha. It is more respectful of a co-equal branch to invalidate an entire act than to create a result that was not passed by the legislature or signed by the executive. Even in the presence of a severability clause, it is not reasonable to infer that the legislature considered all possible permutations of a bill and approved them all, accepting that a court might strike down some clauses while allowing others to stand. Severability analysis has created systems the legislature never intended. The examples of campaign finance in Buckley v. Valeo and Sarbanes-Oxley last term in Free Enterprise Fund v. Public Company Accounting Oversight Board, are used to illustrate. Accordingly, when holding a provision of an act unconstitutional a reviewing court should strike down the entire act and allow the legislative and executive branches to craft whatever alternative they wish to adopt. This Article is the first commentary to call for the entire abolition, rather than some modification, of the severability process.

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Race Audits

R.A. Lenhardt

Volume 62, Issue 6, 1527-1578

The persistence of the problems that attend the American color line makes clear the need for greater experimentation and innovation in the area of race. For years now, we have looked primarily to courts for solutions. But current jurisprudence offers very little that is useful in dealing with the modern realities of durable racial inequality and segregation. As cases such as Parents Involved in Community Schools v. Seattle School District No. 1 and Ricci v. DeStefano make clear, it limits dramatically the tools available to address racial inequality, regarding as “bad cities” localities that try affirmatively to grapple with matters of race. This Article thus urges a focus on localities and the deep potential that such entities—because of their intimate experience with race and how it operates on the ground—have to do “good,” to be “equality innovators.”

The Article develops a proposal for the “race audit,” a voluntary, evaluative measure designed to identify the sources of persistent racial inequality that can be productively deployed by localities. This tool, grounded in the tenets of structuralism, eschews a singular focus on intentional discrimination. Instead, it seeks to uncover the specific structural mechanisms that create cumulative racial disadvantage across domains, time, and generations by, inter alia, being attuned to the spatial dimensions, meaning, and operation of race in the United States. The race audit process, in addition to highlighting the capacity of localities to be important change agents, would help produce a counternarrative about race and the seeming naturalness of the racial segregation and disadvantage now evident in urban and suburban areas alike. The Author contends that, in doing so, the race audit would identify better, more effective strategies for alleviating structural racial inequality. Situating the race audit proposal in a larger project on the commitments underlying civil rights advocacy more broadly, she highlights the potential that the race audit and other innovative tools might have to spur democratic conversations about race and the conditions necessary for belonging at the local level; generate a thicker, more substantive account of equality than has thus far been forthcoming in U.S. Supreme Court cases; and reconcile the perceived tensions between notions of equality and liberty in the area of race.

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Jury 2.0

Caren Myers Morrison

Volume 62, Issue 6, 1579-1632

When the Framers drafted the Sixth Amendment and provided that the accused in a criminal case would have the right to a speedy and public trial by an “impartial jury,” it is unlikely that they imagined the members of that impartial jury becoming Facebook friends during deliberations, or running the defendant’s name through Google during trial. But in the past few years, such cases have increasingly been making headlines. The impact of the Internet on the functioning of the jury has generated a lot of press, but has not yet attracted scholarly attention. This Article is the first to focus legal discourse on this underexamined phenomenon.While the media have characterized this issue as little more than a new variety of juror misconduct, that description may be unnecessarily simplistic. This Article argues that juror attempts to gain information about the defendant and about the law may not reflect misconduct so much as a misplaced sense of responsibility to render the “right” decision. These efforts might also be a signal from jurors that they are chafing under the restrictions of their role.The modern conception of the jury as passive and uninformed has replaced the more active body envisaged at common law and by the Framers. To earlier legal thinkers, impartiality meant a lack of familial or financial interest in the outcome of the case, not ignorance of the facts. This Article argues that we need to rethink the jury’s role for the twenty-first century and restore some of the jury’s active engagement in the process of fact finding. The jury that ultimately emerges—Jury 2.0—may share some characteristics with its more active forebears.

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The New Common Law: Courts, Culture, and the Localization of the Model Penal Code

Anders Walker

Volume 62, Issue 6, 1633-1672

Few tropes in American legal teaching are more firmly entrenched than the criminal law division between Model Penal Code and common law states. Yet even a cursory look at current state codes indicates that this bifurcation is outmoded. No state continues to cling to ancient English common law, nor does any state adhere fully to the Model Penal Code. In fact, those states that adopted portions of the Code have since produced a substantial body of case law—what this Article terms “new common law”—transforming it. Taking the controversial position that criminal law pedagogy is antiquated, this Article proposes a radical update, emphasizing two objectives: (1) the need to stress the interplay between individual state cases and codes, and (2) the need to abandon the position that the Model Penal Code represents a bold new vision of criminal law reform, particularly since that vision is itself almost half a century old.

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Forced Federalism: States as Laboratories of Immigration Reform

Keith Cunningham-Parmeter

Volume 62, Issue 6, 1673-1728

Ever since Justice Louis Brandeis characterized states as laboratories of democracy, judges and scholars have championed the ability of states to offer a diverse array of solutions to complex national problems. Today, proponents of enhanced immigration restrictions apply the same rationale to state immigration laws. This Article challenges the assertion that states can serve as valuable laboratories of immigration reform.States that enact their own immigration laws do not internalize costs or yield replicable results—two conditions needed for viable experimentation. When states internalize costs, other jurisdictions can effectively evaluate outcomes. Replication occurs when states take diverse approaches to common problems. Unfortunately, current state immigration laws do not meet these criteria because states operate in a system of “forced federalism”: a division of power between the two levels of government in which subnational jurisdictions attempt to force the federal government to accept state-defined immigration enforcement schemes. But as states thrust their chosen levels of immigration control on the federal government, their potential to innovate on immigration matters is quite restricted. Essentially, forced federalism limits states to a narrow set of enforcement decisions based on federally defined norms—far from the type of diverse testing associated with true innovation and replication.Today’s state immigration experiments also fail to internalize costs—another condition of successful subnational tests. Restrictionist states that encourage unauthorized immigrants to resettle in other jurisdictions export the economic damage they claim illegal immigration causes. In addition to economic spillovers, laboratory states export social costs to the nation by fundamentally altering the concept of a shared national identity. For example, when immigrants flee restrictionist states in order to avoid racial profiling or harassment, the national commitment to values such as egalitarianism and nondiscrimination is weakened. These harms are not confined to restrictionist states alone but are felt by the nation as a whole.

Not all subjects are ripe for local experimentation and not all tests produce valid results. Despite the appealing image of states as laboratories, today’s immigration experiments will not advance the nation’s ongoing search for sounder immigration policies.

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Apportioning Liability Behind a Veil of Uncertainty

J. Shahar Dillbary

Volume 62, Issue 6, 1729-1792

This Article challenges the reasoning that led most states to abandon the “no contribution” rule. Under the rule, if a victim obtains a judgment against two tortfeasors but chooses (even arbitrarily or out of spite) to recover only from one, the “chosen one” must pay the entire judgment while the other is exempted. This is the case even if the paying tortfeasor is only 1% at fault while the non-paying tortfeasor is 99% at fault. The rule has been lamented by tort-reform crusaders as immoral and unfair. One tortfeasor, the argument goes, should not bear the entire burden while the more culpable tortfeasor is exempted from liability. In deviation from the prior literature, this Article employs economic theory to show that the “no contribution” rule that has been crowned by some as efficient is fair and just. It adopts a contractarian approach to analyze different apportionment regimes including joint and several liability (with and without contribution), several liability, and market-share liability. Relying on modern decision theory the Article shows that individuals behind a veil of uncertainty, unaware as to whether they would be victims or injurers, may in fact choose the much criticized “no contribution” rule. In doing so the Article sheds new light on a fierce and ongoing debate.

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Note – Someone is Watching: The Need for Enhanced Data Protection

Nic Roethlisberger

Volume 62, Issue 6, 1793-1838

The computer revolution has created a world where communication is cheap and instantaneous, and where vast amounts of information and consumer goods are just a click away. It also has created a world where the electronic gadgets we use every day create a trail of information that is being collected, examined, sold, and—far too often—stolen. Individuals have little to no control over the use and sale of this personal, private information, and the law has failed to keep pace. Some privacy advocates have suggested that traditional privacy torts should be used by the courts to stop the worst of these privacy invasions. However, these torts, developed more than fifty years ago, are ill-suited to the task. In addition, many states and the federal government have passed laws and regulations to protect the most sensitive of private information from prying eyes. But these laws have proven to be inadequate in a rapidly changing world of iPhones, Netflix, and Internet searches. What is needed is a national standard that will protect the privacy of individuals without stifling innovation. A ban on the dissemination of private information, along with more stringent laws meant to prevent identity theft, will go a long way to achieving these twin goals.

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Note – Bridging the Gap: An Application of Social Frameworks Evidence to Shaken Baby Syndrome

Lauren Quint

Volume 62, Issue 6, 1839-1870

Ever since the syndrome was first recognized in the 1960s, a diagnosis of shaken baby syndrome (“SBS”) was believed to be pathognomonic of abuse. New data calls into question the accuracy of the diagnosis and its association with nonaccidental death. This data points to alternative causes of brain injuries in infants and small children and casts doubt on the validity of evidence frequently used at trial. This Note explores problems associated with expert testimony in the context of SBS. It argues that despite the ability to accurately present general causation evidence at trial, introduction of specific causation testimony is often premature and unsupported by existing scientific proof. A careful application of John Monahan and Laurens Walker’s social frameworks theory provides the groundwork for new evidentiary techniques in the defense and prosecution of SBS. By limiting expert testimony to that of social frameworks, courts can encourage thorough exploration of pertinent scientific and corroborating evidence, while simultaneously preventing inappropriate specific causation testimony. Finally, this Note compares SBS to other crimes, such as rape and arson, because applying lessons learned from the use of social frameworks evidence in other litigation contexts can help lawyers more accurately and equitably try SBS cases.

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