Volume

52, Issue 2

The Science of Administrative Change

by Barry Sullivan & Christine Kexel Chabot

     Donald Trump repeatedly vowed to reduce regulation during the 2016 presidential campaign. Indeed, one of his key advisors promised to “deconstruct” the administrative state. Since taking office, President Trump has attempted to make good on his promises, spurring federal agencies to brush aside countless regulations that previous administrations had promulgated based on scientific, technological, or economic evidence. Those efforts, which some have dubbed a “war on science,” implicate a long-contested question in administrative law: to what extent should a change in presidential administrations excuse agencies from any obligation to justify changes in policy with expert, reasoned analysis of relevant data? Perhaps surprisingly, the Trump Administration’s efforts align with views that have dominated administrative law scholarship in recent decades. By the time President Trump took office, many leading administrative law scholars had already championed enhanced presidential control over agency decisions, dismissed expert analysis as an anachronistic relic of the New Deal, and suggested that the considered judgments of previous administrations should be amenable to quick and easy change.

     This Article takes a contrary view and asserts a renewed role for expert, reasoned analysis in the face of politically motivated administrative change. Unlike earlier work, this Article identifies change as a fundamental and essential aspect of much expert decision making, and it explains that regulatory statutes often call for an exercise of expert judgment capable of incorporating frequently changing bodies of scientific, technological, or economic knowledge. This positive procedural account of agency decision making shows that the reasoned analysis contributed by agency expertise is far from superfluous, but helps give legitimacy and transparency to administrative government. By identifying the value of expertise within the context of politically directed policy changes, this Article addresses an under-theorized aspect of judicial review of agency decisions and reinforces the need for agencies to support changes in policy with reasoned, expert analysis.

Fight Online Sex Trafficking Act and Stop Enabling Sex Traffickers Act: A Shield for Jane Doe

by Elizabeth M. Donovan

     After concluding that the Communications Decency Act of 1996 was never intended to provide legal protection to websites that facilitate traffickers advertising sex trafficking victims, Congress passed the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 and the Stop Enabling Sex Traffickers Act of 2017, commonly known together as FOSTA-SESTA. This Article considers and then rejects the claim by sex workers and sex worker rights advocates that the alleged burdens FOSTA-SESTA puts on those who self-report as freely choosing to work in the sex trade outweigh the potential benefit—fewer sex-trafficked people.

The Omega Man or the Isolation of U.S. Antitrust Law

by Spencer Weber Waller

     There is a classic science fiction novel and film that present a metaphor for the isolation of United States antitrust law in the current global context. Richard Mathiesson’s 1954 classic science fiction novel, I am Legend, and the later 1971film released under the name of The Omega Man starring Charleton Heston, both deal with the fate of Robert Neville, a survivor of a world-wide pandemic who believes he is the last man on Earth.

     While I am Legend and The Omega Man are obviously works of fantasy, it nonetheless has resonance for contemporary antitrust debate and discourse. United States antitrust law and policy diverges significantly from the rest of the global antitrust community in important areas of scope, philosophy, doctrine, procedure, remedies, and institutions. Much of this divergence in world view is the product of history and path dependence that is largely unique to the United States experience. At the same time, some of the divergence is the result of ideological choices over the past forty years that improbably have remained in place in the United States, while other politics, economics, values, and policy choices have come into prominence throughout the rest of the world.

     Unlike The Omega Man, there is no plague and there are no monsters. But there are major fault lines in competition law and policy where the United States is the outlier and in danger of becoming The Omega Man. While there are also many issues of agreement where the United States has been a thought leader, there are a significant number of the most salient and controversial issues in modern competition law where the United States is choosing to go it alone or nearly so.

     There are some important caveats to this tale of antitrust exceptionalism. Some of the United States antitrust exceptionalism means more enforcement than elsewhere in the world. In most of the areas discussed in this article, it means less enforcement that is seen elsewhere, particularly than in the European Union and the numerous jurisdictions whose competition law is modeled on EU principles. Nor does going it alone, or being in the minority, mean that the United States position necessarily is in error, but it does caution against demonizing foreign approaches or relentlessly searching to transplant U.S. approaches into very different societies.

     This Article surveys several significant areas of antitrust law and policy where United States law, procedure, institutions, and remedies differ significantly from the rest of the world. The basic thesis of the Article is that the growing isolation of U.S. antitrust law is more than just a transatlantic divide. Rather, much of the global community understands U.S. antitrust law and policy, but has rejected its current narrow form in favor of a broader vision of what competition law means, what legal rules are appropriate, and how they should be enforced. Even in areas such as mergers and cartels, outward convergence often  masks critically different practices just beneath the surface.

     As a result, the debate over the future of the Chicago School is largely moot. Examining what the rest of the world competition community actually does, rather what it says, shows the debate is largely over. Whether measured by numbers of jurisdiction, percentage of world gross domestic production, population, or most other measures, the Chicago school paradigm is the outlier, The Omega Man.

Justice in a Brave New World?

by Jean R. Sternlight

     As science fiction has become reality, we should consider the implications of our new technologies for our system of justice. In addition to DNA, we are now regularly using cameras, geo-tracking, facial recognition software, brain scans, computers, and much more to discern and record our physical and mental surroundings. Existing technology and more we cannot yet imagine will increasingly take the place of often unreliable evidence, such as that provided by eyewitnesses. Yet, we have given far too little thought as to how these advances should impact our civil and criminal dispute resolution systems.

     Historically, many justice systems have emphasized the importance of finding the truth. Our new forms of technology will arguably help us discover the truth, and thereby potentially enhance justice. Upon reflection, however, it is not clear that our scientific innovations will necessarily yield greater truth, much less justice. The products of our technology will inevitably be subject to human interpretation and argument, and justice has always been about far more than truth.

     This Article argues that we should focus on three critically important issues as we consider how to redesign our system of justice to accommodate our new technology. First, recognizing that judges and jurors will often lack the competence to interpret scientific data, we should rely more heavily on neutral scientific experts. Second, in light of the psychology of multiple interpretations, we will want to ensure that our technological evidence is interpreted by a diverse audience. Third, the greatest contribution of our powerful new technology may be that it helps us recognize that justice involves much more than finding the truth. Even assuming we could agree on what happened in the past, alternative visions of justice influence how a community will want to deal with past events, such as through punishment, compensation, reparations, apology, or in other ways. By deemphasizing the centrality of truth, we can focus more on other important aspects of justice, including examining motivations, healing community rifts, enunciating community norms, providing procedural justice, protecting human rights, and providing cost-effective access to our dispute resolution system. Focusing on this broad array of concerns will encourage us to reform our litigation system in creative ways and also to rely more heavily on non-litigation approaches to justice.

An Unappreciated Constraint on the President’s Pardon Power

by Aaron Rappaport

     Most commentators assume that, except for the few restrictions expressly mentioned in the U.S. Constitution, the President’s pardon power is unlimited. This Paper suggests that this common view is mistaken in at least one unexpected way. Presidential pardons must satisfy a modest procedural rule: they must list the specific crimes covered by the pardon. The “specificity requirement” means that vague and broadly worded pardons are invalid.

     This claim bears a significant burden of persuasion, since it runs so counter to accepted opinion. Nonetheless, that burden can be met. This Paper’s argument rests on an originalist understanding of the constitutional text, an approach that the Supreme Court has repeatedly endorsed as the appropriate method for interpreting the Pardon Clause. That approach leaves little doubt that a specificity requirement is a binding limitation on the President’s pardon power.

     The final part of this Paper examines the ramifications of the specificity requirement for federal criminal investigations, particularly investigations into Russia’s interference in the 2016 presidential election. The specificity requirement may prove surprisingly significant in this latter context, since it both raises the political costs, and narrows the legal scope, of any pardon the President might grant to former campaign advisors. In effect, the requirement strengthens the hand of investigators, increasing the likelihood that defendants will cooperate with the prosecution. In so doing, the specificity requirement serves as an unexpected ally in the fight for political accountability and in defense of the rule of law.

Urban Robotics: Achieving Autonomy in Design and Regulation of Robots and Cities

by Jesse Woo, Jan Whittington & Ronald Arkin

     Cities across the United States are facing a wave of urban robotic products that combine artificial intelligence with the basic elements of transportation technology. The firms that deploy these technologies intend to both disrupt and serve many markets with their products, including but not limited to the transportation of people and cargo, surveillance, security, entertainment, and the collection and use of vast troves of data from the sensing capabilities of their products. In the evolution of technology, however, automated vehicles, delivery robots, security robots, and follow-me drones or robots are not separate products; they represent one overall movement to combine basic technologies of mobility with modern sensors, machine learning, and data science, into robotics intended for use in urban settings. To the firms, cities are concentrated markets for services, testbeds for imperfect artificial intelligence, collections of persons to engage in beta-testing of their robotics, and public spaces to be shaped in their interest to ease access to public rights-of-way and embed intelligent communication systems in urban space. To the cities, urban robotics foster technological optimism that is often unrealistic for either the technology or the economics of the firm, and their design and deployment poses new hazards for people in public space and private life.

     As robots continue to enter the public rights-of-way in cities across the country, lawmakers need to find ways to regulate these technologies in the public interest. The old Facebook mantra of “move fast and break things” becomes even more concerning when the technology in question has a physical presence and can actually break things or harm people. In addition, the introduction of connected, mobile, sensing robots into public space on a mass scale accelerates already shifting norms around privacy and surveillance in public places. Policymakers at the local, state, and federal levels are taking a variety of approaches to regulate urban robots with these issues in mind. While some may call the diversity of approaches an impediment to innovation, we argue that at this stage of technological development, the laboratory of democracy offers the best possible path forward to regulate this emerging technology in the public interest. Therefore, we argue that broad federal preemption of robotics technologies, like autonomous vehicles, is premature. Cities are in fact the best suited sites of experimentation for autonomous vehicles, drones, and other urban robots, and city lawmakers should be allowed autonomy in their effort to regulate the design and deployment of urban robotics in public space. States and the federal government should provide technical and regulatory expertise and a backstop against a race to the bottom, but their orientation should be to work with cities, not against them.

For the Children: Intentional and Functional Approaches to Same-Sex Parentage in Connecticut

by Hannah Kalichman

     Despite major progress that Connecticut has made in recent years towards achieving marriage equality, there is still a large disparity in the legal treatment of Connecticut parents based on their sexual orientation. Many family law doctrines regarding parentage are entrenched in “traditional” heteronormative definitions of marriage and family, despite changes in the legal recognition of marriage. Furthermore, certain doctrines, such as the presumption of legitimacy, maintain the narrative of a child only belonging to one mother and one father in the context of a marriage. Understandings of what it means to be a family are shifting. In 2019, the adoption of the Uniform Parentage Act of 2017 was proposed in the Connecticut General Assembly. Unfortunately, the legislation died in committee. The Uniform Parentage Act would eliminate many barriers that same-sex parents face, such as replacing gendered statutory language such as “mother” or “father” with simply “parent.” The Act would also provide a regulatory structure through which definitions of parentage could be broadened to include functional and intentional parents within Connecticut’s statutory scheme. This Note argues that current constructions of parentage in society are far too limited and often do more harm to the child than good. Therefore, this Note advocates for the adoption of the Uniform Parentage Act of 2017 in Connecticut. Particularly, this Note outlines the benefits of expanding the legal definition of parent to include more modern realities of family formation such as those who were intended to be parents to a child and those who functioned as a parent in the child’s life. Furthermore, this Note was written with future Connecticut legislation in mind and therefore seeks to provide a broad overview of the history and legal doctrine of marriage as well as the practical implications of the Uniform Parentage Act of 2017.

The Implications of Fourth Estate v. Wall-Street.com on Copyright Registration

by Lauren N. Ross

     This Note addresses the United States Supreme Court’s recent decision, Fourth Estate Public Benefit Corp. v. Wall-Street.com, and analyzes the Court’s decision in light of the relevant sections of the Copyright Act, the underlying circuit split, briefs submitted to the Court, and the oral argument before the Supreme Court. This Note argues that in response to the Supreme Court’s decision, Congress should amend the Copyright Act to codify the special handling process in order to create a semi-conditional copyright registration system.

The Privileged Physician and Medical Malpractice: Why a Qualified Expert Testimonial Privilege Should Not Apply to Defendant Treating Health Care Providers

by Kevin V. Sweeney

     In Redding Life Care, LLC v. Town of Redding, the Connecticut Appellate Court recognized a qualified expert testimonial privilege that precludes discovery of an unretained expert’s opinion. That decision threatens to eliminate relevant and irreplaceable testimony of defendant treating health care providers in medical malpractice cases. The Appellate Court set forth a balancing test to determine if a party can overcome the qualified privilege as applied to a particular unretained expert: (1) whether the expert reasonably should have expected to be called upon to provide opinion testimony in subsequent litigation; and (2) whether there exists a compelling need for expert opinion testimony in the case.

     This Note analyzes the balancing test set forth in Redding as applied to defendant health care providers who participated in the treatment relevant to malpractice litigation. First, this Note considers whether the need for defendant health care providers’ testimony should overcome the Redding qualified testimonial privilege. Second, this Note explores whether the testimonial privilege violates Connecticut’s liberal rules of discovery as applied to defendant health care providers’ deposition testimony.

     Part I begins by discussing the risk of losing the expert opinion testimony of defendant treating physicians in medical malpractice litigation, addressing Connecticut’s requirements for expert testimony of treating physicians and the unique role of defendant health care providers. Part II presents a compelling need for defendant health care providers’ expert testimony in medical malpractice litigation, balancing the rights of expert witnesses to be free from testifying with the needs of courts and litigants for their evidence. Part III concludes by challenging the application of a qualified expert testimonial privilege to the discovery stage of medical malpractice litigation, considering the practical difficulties imposed by the Redding privilege in light of Connecticut’s liberal rules of discovery.

“Over-the-Hill” Yet Still Fighting Uphill Battles to Find Jobs: The Plight of Older Job Applicants Under the ADEA

by Lindsey A. Viscomi

     This Note discusses the unresolved issue of whether the Age Discrimination in Employment Act (ADEA) protects older job applicants from disparate impact discrimination, arguing that they should, in fact, be covered. This Note starts with an examination of the disparate impact framework and how arbitrary employment qualifications can operate indirectly to restrict the employment of older workers. It then goes into a statutory analysis of the pertinent sections of the ADEA and considers several different statutory interpretation methods. This Note will argue that the interpretation of the statute should align with its underlying purpose, which is to prohibit employers from discriminating against older people and to help older workers who have been displaced from work to regain employment.

     This Note then summarizes recent case law interpreting the issue, discussing the most recent developments in differing circuits. Both the Seventh and Eleventh Circuits have now effectively held that older job applicants do not have an available disparate impact claim under the ADEA. This Note argues for a different interpretation of the ADEA that would afford older job applicants the same protections as other protected groups who face similar barriers in employment.

     This Note suggests several remedial measures that may address this problem for the aging workforce. These recommendations include that advocates bring cases that enable other circuits to weigh in on this issue and create a circuit split to bring it to the Supreme Court so that the highest court can clarify the ambiguous language of the ADEA. Alternatively, a congressional amendment to the ADEA to expressly include applicants in the language of the statute would eliminate any ambiguity with respect to discrimination against older applicants for employment.

Paternalism or Gender-Neutrality?

by Stephen J. Ware

     The strong and widely accepted reasons for using gender-neutral language presumptively apply to the gendered word paternalism and its gender-neutral counterpart, parentalism. With these reasons in mind, this Article’s thesis is that legal scholars should begin with a presumption for using the gender-neutral word parentalism, while using paternalism only when emphasizing the important relevance of gender or otherwise trying to convey a gendered meaning. Accordingly, many legal scholars define paternalism in an expressly gendered way—such as “the institutionalization of male dominance,” or an “ideology [that] teaches men to minimize women’s agency”—or fittingly use paternalism to describe an attitude especially characteristic of men or directed primarily toward women.

All these many uses of the gendered word paternalism are supported by the writers’ apparent intent to emphasize the important relevance of gender to the writers’ points.

     On the other hand, and despite the spread of gender-neutral language throughout our society and legal profession, many legal scholars continue to use the gendered word paternalism without indicating any important relevance of gender or otherwise manifesting intent to convey a gendered meaning. These many writers use paternalism rather than parentalism to describe laws or policies aiming to protect people (of all genders) by restricting their choices. For example, these writers cite “paternalism” as a standard justification for restrictions on contractual choice or other private ordering, including the unconscionability doctrine, usury laws, the minimum wage, and countless regulations limiting the range of enforceable promises by consumers, borrowers, employees, investors, and others.

     In each of these contexts, it is better to use the gender-neutral word parentalism, unless the writer emphasizes the relevance of gender or otherwise manifests an intent to convey a gendered meaning. For example, a writer could justify using the gendered word paternalism by arguing that all our laws are gendered male so gendered language should be used to discuss any law, including using paternalism to describe laws aiming to protect people of all genders by restricting their choices. Or a writer could justify using the gendered word paternalism by arguing (after citing sufficient empirical data) that protect-by-restricting-choice parenting is gendered male, so analogous protect-by-restricting-choice laws and policies are also gendered male. Absent one of those two plausible arguments justifying use of the gendered word paternalism, laws or policies aiming to protect people of all genders by restricting their choices are better described as examples of parentalism.

     In short, a presumption for using the gender-neutral word parentalism to describe laws or policies aiming to protect people of all genders by restricting their choices is well-grounded in the strong and widely-accepted reasons for ordinarily using gender-neutral language. And examining legal scholarship’s many uses of paternalism and parentalism illuminates our understandings of gender in both law and parenting.

The Other Half of Regulatory Theory

by Hanoch Dagan & Roy Kreitner

     Theories of regulation conceptualize the task of the agencies of the modern state in terms of the public interest. Regulatory agencies, in this conventional view, should ensure the efficient allocation of scarce resources and secure distributive justice and democratic citizenship. Many agencies nicely fit this aggregative mold, but not all. A significant subset of the regulatory practice—the second half of the universe of regulation—deals with a different task: delineating the terms of our interpersonal transactions, forming the infrastructure for our dealings with other people, both private individuals and firms. This Article focuses on these relational regulators, which regulatory theory marginalizes or neglects.

     Descriptively, we show that many agencies are best understood as devices that supplement or supplant the role of courts in addressing horizontal, rather than vertical or aggregative, concerns. In other words, many of the practices and operational codes and sensibilities of these agencies are best conceptualized as responses to the horizontal challenges of the creation of the infrastructure for just interpersonal relations in core social settings, such as the workplace or the market. Normatively, we argue that the seeming consensus among theorists of both regulation and private law, in which these tasks belong to judges rather than administrators, is misguided. In many contexts—increasingly prevalent in contemporary society—agencies, rather than (or in addition to) courts, may well be the appropriate institution, or at least an additional institution, for the articulation, development, and vindication of our interpersonal rights.

     The analysis yields the initial steps towards a more complete theory of relational regulatory agencies that makes sense of their core practices. We demonstrate the regulatory implications—in both substance and form—of undertaking the role of establishing and maintaining the infrastructure for just interpersonal interaction, and we advance a preliminary account of the regulatory toolkit appropriate to this relational task.

Early Release for Prisoners Convicted of Violent Crimes: Can Anyone Escape the Incapacitation-Retribution Catch-22?

by Michael O'Hear

     Two decades of criminal-justice reform in the United States have achieved only a modest reduction in the nation’s historically high imprisonment rate. Returning to the much lower imprisonment rate of a generation ago will almost certainly require shorter prison terms for individuals who have been convicted of violent crimes. Such a change, however, would draw at least two important objections: (1) people who have been convicted of violent crimes are an especially dangerous offender group who ought to be incapacitated behind bars for as long as possible, and (2) violent crimes are so serious that long prison terms are required as a matter of justice. In order to evaluate the strength of these claims, it is necessary to develop a more nuanced understanding of who is serving time for violent offenses and what exactly they have done.

     In the hope of advancing this understanding, this Article undertakes a unique empirical analysis of the nearly 14,000 violence-convicted individuals who are currently in prison in one state, Wisconsin. Focusing first on the incapacitation objection, the Article identifies indicators of recidivism risk and quantifies their prevalence among violence-convicted prisoners. Next, the Article identifies a set of aggravating and mitigating circumstances that bear on just punishment and quantifies their prevalence. Additionally, the Article synthesizes national benchmarks for prison length of stay (LOS) for the major categories of violent crime. Taking into account risk factors, desert factors, and LOS norms, the Article suggests a rough estimate of the proportion of violence-convicted prisoners who seem to be viable candidates for early release. The analysis underscores the practical and political challenges of achieving large reductions in this component of the prison population, but also highlights the wide variation that is masked by the stigmatizing “violent criminal” label.

Falling Short: On Implicit Biases and the Discrimination of Short Individuals

by Omer Kimhi

     Socio-psychological research solidly shows that people hold implicit biases against short individuals. We associate a host of positive qualities to those with above average height, and we belittle those born a few inches short. These implicit biases, in turn, lead to outright discrimination. Experiments prove that employers prefer not to hire or promote short employees and that they do not adequately compensate them. According to various studies, controlling for other variables, every inch of height is worth hundreds of dollars in annual income, which is no less severe than the wage gap associated with gender or racial discrimination.

     Given the proportions of height discrimination revealed in this Article, I examine why it is not legally addressed. How come the federal system and most states do not view height discrimination as illegal, and why are such discriminatory practices ignored even by their victims? Using psychological literature, I argue that the answer lies in the “naming” of this phenomenon. We fail to recognize height discrimination because it does not fit our mental template of discrimination. The characteristics we usually associate with discrimination—intentional behavior, clear harm, specific perpetrator/victim, and specific domain—do not exist in height discrimination, so we fail to categorize it as such. This Article explains why, despite the “naming” difficulties, the legal system should not ignore the widespread heightism phenomenon. Based on the psychological literature, it suggests ways to deal with it, focusing on the provision of information and on consciousness raising.

Providing Adolescents with Independent and Confidential Access to Childhood Vaccines: A Proposal to Lower the Age of Consent

by Lois A. Weithorn & Dorit Rubinstein Reiss

     The recent rise in rates of nonvaccination and vaccine-preventable diseases and the attendant risks to the public’s health require that lawmakers consider new policy solutions. This Article proposes one such solution. We recommend creation of a limited exception to parental decisionmaking authority by permitting certain older minors to provide legally binding consent for childhood vaccinations and protecting the confidentiality of minors who request vaccination. We analogize this proposed policy to other statutory exceptions that permit certain minors independent access to services relating to contraception, pregnancy, sexually transmitted diseases, mental health and substance abuse, and sexual assault. In this interdisciplinary paper, we analyze the constitutional, policy, scientific, and practical issues relevant to this proposal, and provide lawmakers with a blueprint with which to enact the proposed legislative reform. We also suggest that, in the absence of legislative action, courts allow mature minors to consent independently to recommended childhood vaccinations.

Retributivist Reform of Collateral Consequences

by Brian M. Murray

     This Article applies retributivist principles to discussions about collateral consequences reform. Retributivist ideas relating to agency and responsibility, proportionality, personal and communal restoration, and the obligations and duties of the state, as well as the broader community, suggest suspicion of an expansive collateral consequences regime. A retributivist assessment, cognizant of realities within the criminal system, reveals that many are overly punitive and disruptive of social order. Legislatures that prioritize retribution as a justification for and constraint on punishment should think clearly about whether existing collateral consequences result in disproportionate suffering and, if so, reconsider them. This includes the outsourcing of punishment to private actors. Committed retributivist decision makers within the system, such as line prosecutors, should consider how to approach the imposition of collateral consequences when acting during various phases of a prosecution. Finally, retributivist constraints can inform whether the maintenance of criminal records by the state is justified, and for how long, as well as the scope of second-chance remedies like expungement. These limitations could allow for robust procedural protections for petitioners for relief, shifting the burden of persuasion to the state. In short, retributive principles can be a useful tool for reform, helping to restore to ex-offenders what they deserve.

S.A.S. v. France: A Margin of Appreciation Gone Too Far

by Nathaniel Fleming

     When is it permissible for a government to infringe on the religious rights of its citizenry? When is such infringement necessary for a democracy? This is the central concept underlying the margin of appreciation—a standard utilized by the European Court of Human Rights (ECHR) to determine whether certain human rights violations may be excused as “necessary in a democratic society.” While such an approach certainly has its benefits—particularly considering that the ECHR is an international body seeking to intervene in national politics—it also leaves unresolved the question of the outer limits of such a standard. How far may a nation violate religious rights, and who should determine those limits?

     In S.A.S. v. France, the ECHR confronted this very issue and concluded that the French prohibition on the public wearing of full-face veils—popularly described as a “Burqa Ban”—was necessary in a democratic society. The basis for the decision relied upon France’s argument that Muslim women who wear the veil are incapable of socializing with their fellow citizens, which thereby inhibits their ability to fully engage with civic society. In accepting France’s justification, the ECHR had to overlook the wealth of evidence to the contrary in favor of accepting an unsubstantiated and stereotypical belief that veil-wearing Muslim women are not functioning members of a democratic society. At its core, the decision in S.A.S. permitted France to firmly establish majoritarian cultural norms, rooted heavily in Christianity, to the detriment of its Muslim minority population. This was a margin of appreciation gone too far.

     This Note aims to highlight numerous critiques of the ECHR’s decision in S.A.S. and examine its aftermath in European politics. As will be seen, the standard set forth by S.A.S. is counter to the very principles upon which the ECHR was established. The court has permitted France to selectively favor the rights of some citizens, rather than the rights of all its citizens. Worse still, S.A.S. has encouraged other European nations to follow in France’s stead, and there is a growing trend in favor of abrogating the religious rights of the Muslim population. If this trend is to stop, the margin of appreciation must change.

Preponderance, Plus: The Procedure Due to Professional Licensees in State Revocation Hearings

by Allaina M. Murphy

     A licensee who is subjected to professional discipline often experiences harsh and stigmatizing consequences as a result: humiliation; disgrace; loss of reputation, livelihood, and client base. Unfortunately, this, at times, happens on the basis of an unsubstantiated complaint. Procedural due process protections apply to professional license revocation actions to help prevent such error, but states vary widely in the combination and strength of the procedural safeguards they require in such hearings. It is far more likely that an undeserving professional will be unfairly and permanently harmed in a state with minimal procedural safeguards. This Note focuses on procedural due process issues in state administrative professional license revocation hearings—specifically, whether, and under which circumstances, the preponderance of the evidence standard provides sufficient due process for licensed professionals in administrative disciplinary hearings. This Note argues that “preponderance alone” is not sufficient when a state has no other safeguards in place. However, preponderance of the evidence may be appropriate in states that do have additional procedural safeguards in place—a standard termed “preponderance, plus.”

Cryptocurrency and the SEC: How a Piecemeal Approach to Regulating New Technology Selectively Stifles Innovation

by Adam J. Kuegler

     The Securities and Exchange Commission (SEC) recently took steps to regulate certain forms of cryptocurrency as substitute securities. However, the SEC has not provided clear guidance regarding which forms of cryptocurrency it deems worthy of regulation. This creates a dilemma. While some cryptocurrencies, like those involved in capital raising via initial coin offerings (ICOs), do indeed seem like securities, others do not. For example, J.P. Morgan is developing a cryptocurrency that appears to be more like fiat currency than a security. This Note discusses how the SEC recently convinced a federal judge that certain ICO-related cryptocurrencies can be considered securities under the Howey test, as well as how the major questions doctrine—which asserts that issues of major importance should not be left to the discretion of federal agencies absent clear congressional guidance—relates to the topic of cryptocurrency regulation. Furthermore, this Note discusses why it is undesirable that the SEC is regulating cryptocurrency without clear guidance from Congress regarding which cryptocurrencies the Commission has the authority to regulate. Because cryptocurrency is such a rapidly developing field, the gray area between forms of cryptocurrency that seem to be securities and those that do not will only become more complex. As a result, piecemeal cryptocurrency regulation will continue to deprive innovators of sufficient guidance regarding issues such as whether their cryptocurrency must be registered with the SEC. Ultimately, this Note argues that the regulation of cryptocurrency—as a developing technology—is a “major question,” and thus Congress should authorize a new commission or sub-agency that can adequately address this varied and everchanging field.

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