Digital Commons Network^™

Game Of Drones: Rolling The Dice With Unmanned Aerial Vehicles And Privacy, Rebecca L. Scharf

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This Article offers a practical three-part test for courts and law enforcement to utilize when faced with drone and privacy issues. Specifically addressing the question: how should courts analyze the Fourth Amendment’s protection against ‘unreasonable searches’ in the context of drones?

The Supreme Court’s Fourth Amendment jurisprudence produced an intricate framework to address issues arising out of the intersection of technology and privacy interests. In prominent decisions, including United States v. Katz, California v. Ciraolo, Kyllo v. United States, and most notably, United States v. Jones, the Court focused on whether the use of a single …

Toward Universal Deportation Defense: An Optimistic View, Michael Kagan

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One of the most positive responses to heightened federal enforcement of immigration laws has been increasing local and philanthropic interest in supporting immigrant legal defense. These measures are tentative and may be fleeting, and for the time being are not a substitute for federal support for an immigration public defender system. Nevertheless, it is now possible to envision many more immigrants in deportation having access to counsel, maybe even a situation in which the majority do. In this paper, Professor Michael Kagan makes no real predictions. Instead, he offers a deliberately-perhaps even blindly optimistic assessment of how concrete steps that …

Loud And Soft Anti-Chevron Decisions, Michael Kagan

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This Article proposes a methodology for interpreting the Supreme Court's long-standing inconsistency in the application of the Chevron doctrine. Developing such an approach is important because this central, canonical doctrine in administrative law is entering a period of uncertainty after long seeming to enjoy consensus support on the Court. In retrospect, it makes sense to view the many cases in which the Court failed to apply Chevron consistently as signals of underlying doctrinal doubt. However, to interpret these soft anti-Chevron decisions requires a careful approach, because sometimes Justices are simply being unpredictable and idiosyncratic. However, where clear patterns can be …

On Health, Law, And Religion, Stacey A. Tovino

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The Supreme Court recently decided a number of cases involving health, law, and religion, including Whole Woman's Health v. Hellerstedt, Zubik v. Burwell, and Burwell v. Hobby Lobby Stores, Inc. These cases were important for understanding constitutional undue burden limitations and the boundaries of religious exercise during the Obama Administration. Unfortunately, the Supreme Court's recent opinions addressing health, law, and religion have little value for many health law professors and most practicing health care attorneys. These individuals, tasked with teaching and applying the thousands of federal and state statutes, regulations, and government guidance documents that address a wide …

Of Mice And Men: On The Seclusion Of Immigration Detainees And Hospital Patients, Stacey A. Tovino

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With a special focus on federal provisions strictly regulating Medicare-participating hospitals' use of seclusion, this Article uses developments in health law as a lens through which the uses and abuses of seclusion in immigration detention centers might be assessed and through which the standards governing detention centers might be improved. In particular, this Article argues that the unenforceable standards governing seclusion in immigration detention, including the most recent version of ICE's Performance-Based National Detention Standards, were incorrectly modeled on correctional standards developed for use in jails and prisons with respect to convicted criminals. This Article asserts that correctional standards are …

Complying With The Hipaa Privacy Rule: Problems And Perspectives, Stacey A. Tovino

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Twenty years ago, President Clinton signed the Health Insurance Portability and Accountability Act of 1996 (HIPAA) into law. Over the past two decades, the federal Department of Health and Human Services (HHS) has published several sets of rules implementing the Administrative Simplification provisions within HIPAA as well as the Health Information Technology for Economic and Clinical (HITECH) Act within the American Recovery and Reinvestment Act (ARRA). These rules include a final rule governing the use and disclosure of protected health information by covered entities and their business associates (Privacy Rule).

This Article addresses the question of what it means for …

Crafting Comment Letters: Teach Policy, Develop Skills, And Shape Pending Regulation, Benjamin P. Edwards, Nicole G. Iannarone

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Professor Benjamin Edwards joins his colleague, Professor Nicole Iannarone, in this essay, unpacking the regulatory comment letter process and how to incorporate it into the law school curriculum. Participating in live rulemaking offers unique opportunities for students including mastering the substantive area of law, developing critical thinking skills, and developing their professional identities. The authors describe their own experiences in incorporating students into the regulatory rulemaking process. Because of the focus on securities law, their students review and comment on proposed actions by securities regulators - the Financial Industry Regulatory Authority (FINRA) and Securities and Exchange Commission (SEC). After providing …

A Taxonomy Of Discretion: Refining The Legality Debate About Obama’S Executive Actions On Immigration, Michael Kagan

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Broad executive action has been the Obama Administration’s signature contribution to American immigration policy, setting off a furious debate about whether the President has acted outside his constitutional powers. But the legal debate about the scope of the President’s authority to change immigration policy has not fully recognized what is actually innovative about the Obama policies, and thus has not focused on those areas where he has taken executive discretion into uncharted territory. This essay aims to add new focus to the debate about Pres. Obama’s executive actions by defining five different types of presidential discretion: Congressionally-authorized discretion, non-enforcement discretion, …

Agency Expertise, Alj Independence, And Administrative Courts: The Recent Changes In Louisiana's Administrative Procedure Act, Jay S. Bybee

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In the past two years, the Louisiana Legislature has adopted several structural changes in Louisiana's Administrative Procedure Act (“LAPA”). Most notably, Louisiana adopted what is known as a central panel or unified corps of administrative law judges (“ALJs”). The central panel system, which has been adopted in nearly half of the states and has been proposed for the federal system, has a central agency or office that hires and assigns all ALJs; the central agency rotates ALJs among agencies to ensure the ALJs' independence. Louisiana created the Division of Administrative Law, effective October 1, 1996, within the Department of State …

New Paradigm, Normal Science, Or Crumbling Construct? Trends In Adjudicatory Procedure And Litigation Reform, Jeffrey W. Stempel

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One aspect of a possible new era is the increasing ad hoc activity of various interest groups, including the bench and the organized bar, primarily pursued through official organizations such as the Judicial Conference, the Federal Judicial Center, the American Bar Association (“ABA”), and the American Law Institute. Traditionally, of course, judges and lawyers have lobbied Congress and state legislatures for litigation change, as demonstrated by the saga of the Rules Enabling Act (“Enabling Act” or “Act”). But, the legal profession's more recent “political” activity regarding litigation reform differs from the traditional model in several ways. First, the participation of …