Cornell Law Review

Article

Constitutional Rights in the Machine-Learning State

Aziz Z. Huq

Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School. 

This Article offers a start to the larger project of developing a general account of substantive rules and enforcement mechanisms to promote due process, privacy, and equality norms in the machine-learning state. Cataloging notable state and municipal adoptions of machine-learning tools, it considers how existing constitutional norms can be recalibrated (in the case of due process and equality) or retooled (in the case of privacy). It further reexamines the enforcement regime for constitutional interests in light of machine learning’s dissemination. Today, constitutional rights are (largely) enforced through discrete, individual legal actions. Machine learning’s normative implications arise from systemic design choices. The retail enforcement mechanisms that currently dominate the constitutional remedies context are therefore particularly ill fitting. Instead, a careful mix of ex ante regulation and ex post aggregate litigation, which are necessary complements, is more desirable.

Nov 2020

Article

Presidential War Powers, The Take Care, and Article 2(4) of the U.N. Charter

Brian Finucane

The author serves as an attorney-adviser at the U.S. Department of State. He prepared this Article in his personal capacity, and the views expressed here do not necessarily represent the views of the Department of State or the U.S. government. 

This Article argues that by virtue of the Take Care Clause Article 2(4) of the U.N. Charter binds the President as a matter of domestic law. In substantiating this proposition, this Article relies primarily upon the arguments of the Executive Branch itself in three superficially distinct, though interrelated domains. By synthesizing Executive Branch views on war powers, the Take Care Clause, and Article 2(4), this Article shows how presidential arguments advancing claims of authority also delineate the scope of the corresponding constitutional duties. The Take Care Clause gives and takes at once. If the President is not constrained by treaties, the President also lacks the power to execute them.

I rebut a 1989 Office of Legal Counsel memorandum by now-Attorney General William Barr that concluded that the President may unilaterally “override” Article 2(4) because the treaty provision is non-self-executing and because the use of force is a “political question.” I explain that, though the political question and non-self-execution doctrines may be relevant to the justiciability of Article 2(4) in the courts, neither is dis-positive as to the status of Article 2(4) as a “Law” that the President is obligated to faithfully execute. The conclusion that Article 2(4) is a “Law” has significant implications for the allocation of war powers. Contrary to Barr’s 1989 memo, by virtue of the last-in-time rule, it is Congress—not the President—that possesses the authority to “override” this treaty provision.

Nov 2020

Note

Too Much “Acting,” Not Enough Confirming: The Constitutional Imbalance Between the President and Senate Under the Federal Vacancies Reform Act

Christopher D. Johnson, B.S., Northwestern University, 2014; Cornell Law School, J.D. Candidate, 2021.

“While the recent uproar over acting service largely stems from perceived abuses of the Federal Vacancies Reform Act during Trump’s presidency, it is properly understood as a foreseeable consequence of the structure of the legislative lever that the President—any president, not just President Trump—can pull to temporarily fill key positions in the Executive Branch absent Senate consent. This Note charts a path toward fixing that structure. . . .

This Note proceeds as follows. Part I describes the Federal Vacancies Reform Act’s basic mechanics, highlights aspects of the statute this Note’s proposed changes seek to address, and details Trump Administration controversies illustrating how, with regard to the process of filling the upper ranks of executive agencies, the FVRA amplifies presidential authority to the detriment of the Senate’s authority. Part II analyzes the FVRA’s constitutional foundation, delineates the key tension in the statute flowing from the nexus between the President’s take care obligation and the Senate’s advice and consent function, argues that the FVRA aids the former at the expense of the latter, and contextualizes this argument by describing the increasing Senate resistance the President must overcome in today’s appointments process. Part III sets forth changes to the FVRA in view of its constitutional imbalance between the Take Care Clause and Senate advice and consent.”

Nov 2020

Note

The Death of Retaliatory Arrest Claims: The Supreme Courts Attempt to Kill Retaliatory Arrest Claims in Nieves v. Bartlett

Michael G. Mills, B.A., Siena College, 2018; Cornell Law School, J.D. Candidate, 2021.

“The Supreme Court’s recent decision in Nieves v. Bartlett threatens to render retaliatory arrest lawsuits superfluous and allows officers to flagrantly chill speech without repercussion. An officer violates the First Amendment when she arrests an individual because of his protected speech. Prior to the Supreme Court’s decision in Nieves, the individual could bring a lawsuit against the officer under 42 U.S.C. § 1983 for depriving the individual of his First Amendment rights. Nieves, however, required the individual to show that the officer lacked probable cause for the arrest. This requirement nearly eliminates retaliatory arrest claims since it is incredibly easy for an officer to show probable cause. Even if the individual could show the officer lacked probable cause, the individual could have already sued the officer for a false arrest. Thus, retaliatory arrest claims are now superfluous and no longer serve any purpose in discouraging officers from chilling free speech. The decision’s negative effects will be compounded with the increasing number of retaliatory arrests during protests of recent police killings of Black individuals, including George Floyd and Breonna Taylor.

The Court did create an exception in Nieves for when an officer had probable cause but normally would not exercise her discretion to arrest. For example, when an officer arrests an anti-police protester for jaywalking. Nonetheless, the Court suggested such a high standard to govern this exception that very few retaliatory arrest claims will succeed. Instead, lower courts should adopt a less stringent standard. This Note advocates that lower courts adopt a burden-shifting test used in employment discrimination cases. This standard is more realistic for plaintiffs to satisfy, and thus, will allow the Nieves exception to deter officers from chilling speech.”

Nov 2020

Article

In Defense of Breakups: Administering a “Radical” Remedy

Rory Van Loo, Associate Professor of Law, Boston University; Affiliated Fellow, Yale Law School Information Society Project  

 

Calls for breaking up monopolies—especially Amazon, Facebook, and Google—have largely focused on proving that companies like Whole Foods, Instagram, and YouTube are anticompetitive. But scholars have paid insufficient attention to a separate step in the analysis that may help explain why the government in recent decades has not broken up a single large company. . . . This Article asserts that the pervasive hesitancy about administering breakups renders antitrust impotent in the face of monopolies—too often a statutory right without a remedy. More importantly, the Article challenges the perception of breakups as unadministrable.

Nov 2020