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.
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.