The Highest Court: A Dialogue Between Justice Louis Brandeis And Justice Antonin Scalia On Stare Decisis

P. Thomas DiStanislao III

The scene is the main reading room in the Supreme Court library. It is 12:01 AM on a Thursday night, and a hapless law clerk named Madison Nomos is working on a draft of a dissenting opinion for his Justice. Specifically, Nomos is researching whether an earlier Supreme Court case—one with which his Justice vehemently disagrees—should play a significant role in the Court’s analysis of an issue that has gripped the nation. Nomos’s Justice was recently confirmed, and this will be her first opportunity to firmly state her views on stare decisis in the Supreme Court. She has tasked the clerk with providing support for her argument that the Court should abandon its prior ruling. Nomos has been working on the opinion for hours and is no closer to reaching a conclusion than when he started. Though the courthouse is empty, the clerk hears a noise as the doors at the end of the room fling open. Justice Antonin Scalia and Justice Louis Brandeis enter the room, engaged in a heated argument over Webster’s New International Dictionary: Second Edition (1934).

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COMMENT: When Is It Necessary For Corporations To Be Essentially At Home?: An Exploration Of Exceptional Cases

Priscilla Heinz

This comment examines the current state of the law surrounding the exercise of general jurisdiction and forecasts the circumstances under which the Supreme Court is likely to clarify its recent decisions. Its purpose is to explore the principles announced in Goodyear Dunlop Tires Operations, S.A. v. Brown and Daimler AG v. Bauman and consider whether the due process rationales offered in the past coincide with the new essentially at home standard imposed for general jurisdiction. Moreover, this comment analyzes the reactions of the lower courts in the wake of these decisions and predicts where the Supreme Court is headed in cases involving foreign corporations. The recent decisions prioritize predictability for the defendant above rationales offered in the past. The Court left open a small opportunity for discretion, but has stopped just short of establishing a bright-line rule. Thus, lower courts must try to identify what exceptional hypothetical facts are necessary to exercise general jurisdiction over a corporate defendant outside of its principal place of business and state of incorporation.

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COMMENT: Amateurism And The NCAA: How A Changing Market Has Turned Caps On Athletic Scholarships Into An Antitrust Violation

Daniel Laws

When asked about why student-athletes should receive compensation, Jay Bilas, an ESPN analyst, responded with a metaphor: “[I]f your kid is the star of Home Alone, and they say ‘Look, we are just going to pay for expenses. And if they do a really good job, maybe when they‘re older . . . they can get paid then.’ You would say, ‘No, no—this is not the school play. This is a multi-billion dollar business.'” The college athletics industry is worth $16 billion, and it only continues to grow as the number of collegiate students and student-athletes increases. The governing body of collegiate athletics, the National Collegiate Athletic Association (“NCAA”), prides itself on the amateur status of its athletes. To preserve its athletes’ amateurism, the NCAA mandates that its member institutions agree not to compensate student-athletes with athletic scholarships that are above the university‘s cost of attendance. Typically, this type of horizontal agreement—one between competitors that artificially caps the amount a worker can earn—violates section 1 of the Sherman Act as an unreasonable trade restraint. The NCAA, however, is permitted to continue capping athletic scholarships, and thus preserving the amateurism of its athletes, because the Ninth Circuit has determined that the pro-competitive effects of scholarship caps outweigh the anticompetitive effects. The time has come to recognize that the injustice of withholding due compensation from athletes who are generating billions of dollars in revenue for universities outweighs the NCAA‘s interest in preserving amateurism.

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COMMENT: Protecting America’s Elections From Foreign Tampering: Realizing The Benefits Of Classifying Election Infrastructure As “Critical Infrastructure” Under The United States Code

Allaire M. Monticollo

In just the past five years, the United States has suffered numerous hacks into important entities and institutions across the country by ill-intentioned actors. Private companies and government agencies alike have felt the negative impacts of security breaches by hackers infiltrating proprietary and protected systems. Even the United States political landscape has proven vulnerable to bad actors in the realm of cyber security. Furthermore, analysts have attributed some of the most recent highly publicized hacks to state-sponsored groups. As cyber security threats and opportunities for foreign hackers to infiltrate critical systems become more prevalent, it is natural to wonder where the next hack will occur, when it will happen, and whom it will affect.

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Drawing Lines of Sovereignty: State Habeas Doctrine and the Substance of States’ Rights in Confederate Conscription Cases

Winthrop Rutherfurd

Across the Confederacy, state judges uniformly claimed jurisdiction to issue habeas writs to confederate conscription officers on behalf of conscripts claiming unlawful detention. State judges based this authority to issue habeas writs to federal officers on the state habeas doctrine, pursuant to which a state court had coequal jurisdiction with federal courts to determine the lawfulness of a habeas petitioner’s detention. Today state habeas doctrine would constitute a gross violation of jurisdictional lines separating federal and state sovereignty; federal courts have exclusive jurisdiction to determine whether a federal prisoner’s detention is lawful. Even during the antebellum period state habeas was constitutionally controversial, resulting in a robust and divided body of antebellum state and federal precedent, and featured in the broader judicial and political disputes over the boundaries of states’ rights.

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The Digital Forevermore

Thomas J. Ridge

We now live in what I call the “digital forevermore.” It was not that long ago that the original computer base data transmission protocol was created simply to facilitate telecommunications between the United States Department of Defense and research universities. While certainly primitive compared to the digital global ecosystem that drives commerce and culture throughout the world today, its core features remain the same. The Internet is an open system based on anonymity. It was never designed to be a secure communication platform. The opportunities and vulnerabilities within this global network, with electrons racing everywhere, much of it with personal information about all of us, are probably beyond our individual comprehension. The ubiquity of the Internet is its strength, and the ubiquity of the Internet is its weakness. And we are all potentially exposed to the potential malignant use of the Internet and the nefarious use of our information that is on it.

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Next Generation Foreign Intelligence Surveillance Law: Renewing 702

William C. Banks

Sometime before the end of 2017, Congress has to decide whether and then on what basis to renew the FISA Amendments Act (“FAA”), a cornerstone authority for foreign intelligence surveillance that sunsets at the end of December 2017. The Privacy and Civil Liberties Oversight Board (“PCLOB”) reported in 2015 that more than one quarter of the National Security Agency (the “NSA”) reports on terrorist activities are derived, in whole or in part, from surveillance authorized by section 702 of the FAA, and that the percentage has increased every year since the enactment of the FAA. Although the bulk warrantless collection of communications content enabled by the FAA was viewed as a scandalous overreach when the Bush Administration‘s then-secret program‘s existence was revealed by the New York Times in December 2005, Congress approved substantially the same program on a temporary basis in 2007. Congress codified it in 2008, extended it in 2012, and is almost certain to renew it next year.

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Preventing an Air Panopticon: A Proposal for Reasonable Legal Restrictions on Aerial Surveillance

Jake Laperruque

Imagine a world where a small plane flies miles above a city, effectively invisible to its inhabitants, but looking down on them. Meanwhile, a series of drones, controlled in a semi-automated pattern by a single operator, hover over the surrounding suburbs. A select group of monitors—no more than a dozen members of the local police force—pinpoint areas of interest in real time, including a large protest, several doctors‘ and lawyers‘ offices, and a mosque.

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COMMENT: The 2016 Amendments to Criminal Rule 41: National Search Warrants to Seize Cyberspace, “Particularly” Speaking

Devin M. Adams

George Orwell‘s dystopia, with the ever-watchful Big Brother, has seemingly become a reality with the recently passed amendments to Rule 41 of the Federal Rules of Criminal Procedure. Rule 41, governing searches and seizures, now permits magistrate judges to authorize agents—under a single warrant—to “remotely access,” and simultaneously search, copy and seize information from an infinite number of unknown electronic devices in multiple districts anywhere in the country. The unlimited jurisdiction provision is triggered when a device‘s location is obscured through “technological means,” or if agents are investigating computer crimes in five or more districts—regardless of whether the locations of the innumerable search targets are known. Absent clairvoyance, this begs the question of how Fourth Amendment warrant requirements are applied to such a sweeping search.

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COMMENT: Digital Technology and Analog Law: Cellular Location Data, the Third-Party Doctrine, and the Law‘s Need to Evolve

Justin Hill

Law enforcement agencies consistently utilize Cell Site Location Information (“CSLI”) generated by a suspect‘s cell phone to place that suspect at the scene of a crime. Despite the widespread use of these tactics, consensus in the legal realm regarding the Fourth Amendment‘s protection of CSLI remains unrefined. The most recent federal circuit courts to address the issue have each applied the third-party doctrine to find no Fourth Amendment protection of the CSLI information in question.1 However, this apparent uniformity is deceptive. Two of those circuits came to opposite conclusions before the panel opinions were reversed en banc. Each decision has also been met with vociferous opposition within the circuit. Furthermore, the Third Circuit, the first to address the issue, found that the third-party doctrine did not apply at all. Adding fuel to the fire, three state high courts have taken on the issue and found the gathering of at least some forms of CSLI without a search warrant unconstitutional on state grounds. Twelve additional states have statutorily insured privacy protection in at least some forms of CSLI data.

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