I. INTRODUCTIONThe recent Great Recession soiled the credit reports of many Americans. Furthermore, advances in database technology have allowed employers and others wider access to comprehensive information about consumers, sometimes significantly narrowing the opportunities those consumers might have for employment, credit, housing, or insurance. These results have inspired some state legislatures to revise their credit reporting statutes to ameliorate the percussive effects of the economic crisis on their citizens' credit records. However, state lawmakers must navigate the thicket of the federal Fair Credit Reporting Act's preemption provisions if they are to create legislation that will be effective rather than impotent. This Article analyzes these provisions alongside recent Supreme Court decisions about preemption. The Article then provides both a theory of the intersection of state and federal credit reporting laws and describes the space remaining for state legislatures to create preemption-proof, or at least preemption-resistant, credit reporting provisions that can fairly balance the concerns of individuals and those who want access to their background information.Part II describes some recent legislative efforts in protecting consumers' financial and criminal record information. Following, Part III sets forth the framework of federal preemption generally and analyzes the Supreme Court's recent preemption decisions that are relevant to information-protection laws. Part IV describes the Fair Credit Reporting Act provisions that may overlap with state legislative activity, along with its specific preemption provisions, and analyzes the vulnerability of various state credit reporting provisions to preemption. The Article then maps out tactics for states to employ to preemption-proof their legislation and maximize the effects of their state information-protection laws.II. STATES' REGULATION OF DISCLOSURE OF CONSUMER FINANCIAL AND CRIMINAL RECORD INFORMATIONNearly every state regulates how consumers' financial and criminal record information may be collected and disclosed; these are, in essence, reputation-protecting provisions. However, given recent developments in the economy and data technology, this may be a suitable time to adjust these laws to better balance the privacy interests of consumers against the information interests of employers, banks, and insurance companies.The Great Recession inflicted tremendous damage to credit records by causing widespread unemployment and depressing housing values, putting great stress on the ability of many to repay debts.1 Those defaults and delays in payment have been duly amassed by the consumer reporting agencies that publish credit reports about consumers and compute their credit scores. Seeing this information about those hurt by economic blows may make employers less likely to hire them, landlords less likely to rent to them, and insurers less likely to insure them (or willing to insure them, but only at elevated premiums).Aside from the economic environment, advances in data technology have increased our ability to view public records across the country, leading many to be marked by visible criminal records incurred even decades ago-records that many might have thought they had surpassed.2 In addition, medical costs continue to accelerate and medical debt not only spoils many otherwise solid credit reports but has also led to a significant number of bankruptcies.3 Finally, the crime of identity theft has increased as data breaches become more common, exposing sensitive financial information to thieves who can then poison their victims' credit reports.4State legislators can ameliorate the effects of some of these historical events on their constituents' opportunities, curbing the impact of old credit, criminal, medical, and identity theft problems. However, for such record-enhancing provisions to have their intended impact, the drafters must carefully navigate the express preemption provisions staked throughout the Fair Credit Reporting Act (FCRA), the federal statute governing the creation and use of credit reports. …
In equal protection jurisprudence, courts adhere to a three-tiered system of review to determine the constitutionality of laws that rely on classifications of people. Strict scrutiny is the most searching inquiry, followed by intermediate scrutiny, and then rational basis. Rational basis review is the default. The two heightened levels of scrutiny apply to only a handful of already-identified groups. As a general principle, courts are deferential to the other branches of government. However, there is a departure to that principle when it comes to individual rights. That is, rational basis review is exceptionally deferential to the government. When individual rights are at stake, courts typically require the government to prove that its action is constitutional in nature and justified in fact. But under rational basis review, courts require the challenger of a law to disprove every conceivable, possible rationale for a law, regardless of whether it was actually a motivating factor behind the legislation. This standard has been interpreted to mean that even if a judge can imagine any reason why a rationale could — even hypothetically — justify a law, then the law stands as constitutional. Often governments do not even assert a rationale for their actions. Rather challengers must disprove even the wildest, most speculative and hypothetical justifications, which could include those introduced by the judge herself.This Article begins by revealing several of the inherent shortcomings of the current rational basis standard. That standard undermines principles of adversarial adjudication, destabilizes other individual rights doctrines, leaves the rights of certain citizens with virtually no protection, and legitimizes discriminatory animus. In effect, rational basis review preserves a discriminatory status quo, meaning that as society’s values evolve, the Equal Protection Clause becomes less capable of protecting those values. Those troubling consequences need not persist. This Article proposes an alternative and improved in standard of review for the least intrusive level of judicial scrutiny in the tiered equal protection framework. This standard, which I call “rationale review,” shifts the burden of proof onto the government to show a reasonable, fact-based justification for laws that classify people. This standard would only marginally increase the burden on governments defending laws that involve classification of people, but it would require those governments to proffer at least an iota of evidence of a constitutionally permissible justification. Rationale review would not dramatically alter the current tiered equal protection framework. Those groups currently afforded heightened scrutiny would continue to receive such a standard of review. And laws concerning all other groups would continue to receive the least intrusive judicial inquiry under the tiered framework. Under rationale review, however, the government would bear the burden of proof in justifying as constitutional — with facts — those laws that make classifications of people.
I. MUST EVERY APPARENT FREE SPEECH CASE HAVE A MEANINGFUL ANSWER UNDER THE FREE SPEECH CLAUSE? The litigation (1) challenging the recently adopted federal statute (2) and FDA rules (3) seeking to regulate tobacco package labeling focuses on freedom of speech. There is, no doubt, an obvious, literal sense in which these tobacco-labeling cases raise various free speech issues, evoke and debate free speech tests, and are judicially resolved on free speech grounds. This article, however, raises an unusual but revealing question about what we might call the legal that is apparently controlled by free speech law. In particular, this article asks whether an apparent free speech law case could, upon closer examination, ever turn out to not really involve a genuine free speech law case. Certainly, in most free speech cases, we expect to encounter typical sorts of indeterminacies (4) and incommensurabilities. (5) This article asks whether there could also be what we might, by analogy, call something like gaps, cavities, faults, voids, lacunae, or vacua within the conceptual space of free speech law. The idea would be roughly this: to begin with, a case that is located within a free speech vacuum might, contrary to initial appearances, not coherently implicate the distinctive basic reasons for according constitutional protection to speech in the first place. By consensus, the most fundamental of such reasons typically include one or more of the following: promoting the search for truth of one sort or another; furthering the value of self-realization or self-fulfillment in one sense or another; and promoting something like democratic self-government, perhaps including the civic virtue of tolerance and the maintenance of popular constraints on the exercise of political power. (6) Setting aside possible complications and qualifications, if none of the basic reasons for distinctively protecting speech are coherently or meaningfully at stake in a given case, we could say that the most basic of the various presuppositions or prerequisites of free speech jurisprudence is in that case not met. Of course, the fact that no basic purpose of protecting freedom of speech is significantly implicated in a given case would most typically indicate not that we have entered a void or vacuum within the space of free speech law, but instead merely that the purported speaker should simply lose the free speech case on the merits. For example, literal or symbolic speech that does not intend to, and does not in fact, convey any cognizable message to any possible audience might well simply not count as speech for constitutional purposes.7 And we would presumably say in such cases that the purported speaker has merely lost the entirely genuine free speech case on the merits, (8) Yet what if a particular case involved not only the absence of any sufficient, meaningful, coherent promotion of any of the distinctive basic purposes for constitutionally protecting speech, but the corresponding absence, on the other side of the case, of any sufficiently meaningful, coherent, distinctive, promotion of any legitimate or otherwise sufficient governmental interest, to be promoted through regulating the speech in question? We could, in some sense, still label the case as a free speech case, lost on the merits by whichever side bore the decisive burden of proof. (9) But more substantively, we could in such a case rightly sense something like a free speech law vacuum. The case would present not so much, say, a standard problem of free speech law indeterminacy, as of the absence of any sufficiently meaningful, non-self-contradictory, cogent reasons, based in free speech and regulatory law, (10) for deciding the case in any particular way, or for deciding the case on free speech and regulatory grounds at all. Or we could say that a free speech law vacuum case presents not so much a standard problem of the incommensurability (11) of values and interests, but an absence of any sufficient such interests, bearing favorably or unfavorably upon freedom of speech, on both sides of the case. …
In 1995, a law professor at the University of Chicago Law School dubbed the Supreme Court confirmation hearings “vapid and hollow” and added that they, as implemented, “serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government.” Ironically, this same law professor, Elena Kagan, later endured the confirmation hearings as a nominee and currently sits as the 112th Justice of the U.S. Supreme Court. While she may be one of the few to ever reach a seat on the High Court, she is not alone in her assessment of the Supreme Court’s lackluster confirmation process. Other legal scholars have called the process a complete mess and likened it to a circus or a kabuki dance.\nAlthough there are multiple aspects of the confirmation process that could use reform, this Note draws attention to one flaw of the confirmation hearings that many overlook—members of the Senate Judiciary Committee (the “Committee”) use the confirmation hearings as a forum to voice their own political beliefs instead of focusing their undivided attention on the qualifications of the nominee. Since senators do not focus entirely on the nominee, they are not thoroughly examining the nominee’s fitness for the Court. As nationally televised events, it only follows that senators use the confirmation hearings as a medium to speak to theirconstituents. One may ask why this matters or point out that one would expect this of senators; after all, senators constantly have their campaigning caps on, especially when receiving national attention. However, these responses ignore the negative effects of senators placing themselves, rather than the nominees, in the confirmation hearings’ limelight. If the purpose of confirmation hearings is to determine the qualifications of a nominee and ensure that he or she is fit for the Court, then this purpose goes unfulfilled if constituents influence senators’ lines of questioning. Senators consume themselves with how their constituents back home will view their questioning and fail to focus on what is at stake—the confirmation of the nation’s next Supreme Court justice. If the purpose of confirmation hearings is to evaluate the nominee, then this purpose would best be served by having undivided attention focused on the nominee and his or her answers. If senators have an ulterior motive—engaging in an open dialogue with their constituents—then the confirmation process does not effectively serve its primary purpose.\nPart I of this Note investigates the confirmation and appointment power that the Constitution delegates to the Senate. Part II provides a detailed history of the confirmation process and its dramatic evolution over the last century, which is crucial in order to fully comprehend today’s process and its problems. Part III, after examining the media’s role within the confirmation process and the publicity that the confirmation hearings attract, offers proof that senators are cognizant of their national audience and highlights specific examples of senators addressing their constituents via the confirmation hearings. Part IV concludes by setting forth three possible solutions to the overarching problem: implementing anonymous questioning of the nominees through Committee representatives; appointing experts to question the nominees in the senators’ places; and replacing video recording of the hearings with audio recording.
The concept of procedural fairness plays an important role in the enforcement \nof competition law, which must not only be effective but also fair. Thus, legal \ninstitutions should guarantee a proper level of protection of the values of procedural \nfairness. This paper is dedicated to the possible conflict between the guarantees \nof procedural fairness that find their expression in the right to be heard and in the \nprotection of confidential information.Both guarantees, the right to be heard on the one side, and the protection of \nconfidential information on the other, should be properly balanced. Unlike EU law, \nPolish legislation and jurisprudence proves to be inefficient in this respect. Article \n69 of the Competition Act fails to show clearly what the limits of the protection \nof confidential information are in situations when the right to be heard of other \nparties of antitrust proceedings is at stake. Business secrets are predominantly \nprotected over the right to be heard also in the jurisprudence of Polish courts. \nBy contrast, the Competition Act does not seem to properly protect confidential \ninformation other than business secrets. Such situation poses a risk for the adequate \nlevel of protection of procedural fairness in Polish antitrust enforcement. Moreover, \nneither Polish legislation nor jurisprudence explains to companies what shall prevail \nin the case of a concrete conflict between the protection of business secrets and \nthe right to be heard. An answer to this questions is needed seeing as proof of a \ncompetition law infringement which should be accessible to the parties, can at the \nsame time constitute a business secret.
In the 2004 presidential election, the United States came much closer to electoral meltdown, violence in the streets, and constitutional crisis than most people realize. Less than a 2% swing among Ohio voters toward Democratic candidate for President John Kerry and away from incumbent Republican President George W. Bush would have placed the Ohio - and national - election for president well within the margin of litigation, and it would have gotten ugly very quickly. Allegations of voter fraud and voter suppression were rampant on both sides, and even though Kerry conceded the election on the day after Election Day, public confidence in the U.S. system of American administration is now quite low. Previously unpublished data demonstrate that there is a growing partisan divide over views of the fairness of the election process.The bad news from the story of Election 2004 is that things likely won't get better in 2008. As Part I details, the extreme partisanship and close division of the American electorate, coupled with the Electoral College system, make the possibility of another razor-close presidential election in one or more battleground states fairly likely. Add to that mix election administration incompetence and a widely decentralized system of election administration with a patchwork of inconsistent rules. What's worse, since Bush v. Gore, losing candidates have become more willing to resort to election law as part of a political strategy: the number of election-law related cases in the lower courts has risen dramatically compared to the period before the case. It all adds up to a recipe for electoral meltdown.In Part II of this Article, I argue for three reforms that could significantly lower the risk of electoral meltdown. First, I advocate registration reform, in particular universal voter registration conducted by the government coupled with a voter identification program. There has been a wide partisan divide in the election administration debate between Democrats who have expressed concern about voter suppression and Republicans who have expressed concern about voter fraud. The registration reform I advocate can alleviate both of those concerns, minimize the potential for and political rhetoric regarding voter fraud, and eliminate a great majority of potential litigation surrounding presidential election administrationSecond, I advocate a transition to nonpartisan election administration. The nonpartisan solution aims to create both the actuality and appearance of neutrality in election administration, thereby bolstering the public's faith in the process. Australia and Canada serve as good models for reform in this regard, though not necessarily their nationalization of election administration. I consider how to assure that U.S. election administrators are truly nonpartisan, and contrast arguments for nonpartisan election administration with calls for nonpartisan redistricting commissions and campaign finance enforcement.Third, I discuss the role of the courts in minimizing electoral meltdown. The key here is to encourage courts to be more willing to entertain pre-election litigation and much more chary of entertaining post-election litigation. To the extent election administration problems can be recognized in advance, pre-election judicial review prevents future harm from occurring, rather than putting courts in the position of trying to undo the bad effects of a past harm. The costs of post-election review are large: the pressure put on courts to decide arcane election law questions when the outcome of an election - especially a presidential election - is huge, and the appearance of partisan decisionmaking is inevitable.
TABLE OF CONTENTS INTRODUCTION I. SCOPE OF REVIEW A. The Art of Scope of Review B. The Administrative Procedure Act as a Guide C. Congressionally Defined Scope of Review Standards D. Unpredictability of Reversal Rates II. THE SUPREME COURT BELIEVES THESE WORDS MATTER A. Contrasting the Outcome Effect of Standards of Proof B. Standards of Proof and Scope of Review Compared C. Scope of Review in Other Settings III. SCOPE OF REVIEW IN CONTEXT: SOCIAL SECURITY DISABILITY, VETERANS DISABILITY, AND THE FREEDOM OF INFORMATION ACT A. Social Security Administration Disability Cases B. Veterans Disability Claims C. Freedom of Information Act Cases 1. The Special Case of Exemption 1 2. Judicial Views About Freedom of Information Act 3. Comparison to Reverse-Freedom of Information Act Cases D. Summary IV. JUDICIAL REVIEW OF SENTENCING DECISIONS V. LESSONS IN SCOPE OF REVIEW FOR THE SUPREME COURT AND CONGRESS A. Reassessing Social Security Administration Disability Review 1. The Supreme Court's Role: Tinkering with the Substantial Evidence Test 2. The Role of Congress: Changing the Structure of Review 3. Role of the Agency: Managing, Not Dictating, Outcomes B. Reassessing Freedom of Information Act Review 1. The Supreme Court's Role in Setting the Tone 2. Congressional Alternatives 3. Role of Agencies and the Department of Justice in Freedom of Information Act Review CONCLUSION APPENDIX A APPENDIX B Under existing standards, then, the courts may narrow their review to satisfy the demands for administrative discretion, and they may broaden it close to the point of substituting their judgment for that of the administrative agency. (1) After fifty years ... we have yet to agree on how this review should operate in practice. We are still struggling with where to draw the line between obsequious deference and intrusive scrutiny. (2) INTRODUCTION The purpose of calibrating the breadth--or scope--of judicial review over fact finding by administrative agencies is ultimately to allocate decision-making responsibility between the executive and judicial branches. Because Congress usually makes these decisions, all three branches have a stake in the process. In assigning oversight responsibilities, Congress makes a choice: it weighs the desire for efficient and timely agency action against the need to ensure consistent and fair decision making. In balancing these considerations, Congress intends factual support for agency decisions to be subject to varying levels of scrutiny or, on occasion, to be free from scrutiny. (3) Straightforward enough, one would think. Yet, as the introductory quotes suggest, after all these years, reviewing judges are still struggling to make sense of these standards, especially as they apply to scope of review of facts or of law and policy. (4) I. SCOPE OF REVIEW It is doubtful that Congress wants scope of review to be an irrelevant labeling exercise. Instead, one might reasonably expect that Congress wants outcomes, defined in terms of affirmances, remands, and reversals of agency actions, to vary according to the scope of review standard chosen (or at least to find some judicial recognition of these expectations). But it seems the question is rarely asked and its premise remains unexamined. To explore the relationship of to standards, this Article makes a preliminary attempt to measure against the relevant scope of review provisions. This outcomes analysis produces some intriguing correlations between results and formulas, along with some surprises that themselves serve to raise more questions. Although such an exercise can never produce total agreement about how scope of review standards should operate, it facilitates a better understanding of why Congress differentiates among these standards and why the lesson sometimes is lost on the courts. …
Almost fifty years ago, Herbert Wechsler famously argued that congressional legislation requiring individual states to fulfill federal mandates should be given great deference by the Supreme Court because state interests were better by the legislative process.' All federal laws, Wechsler noted, had to gain the approval of the Senate, which by design represents states rather than individuals; the House, which is composed of districts drawn by state legislators; and the President, who is elected by the Electoral College, an institution also designed to protect in part the interests of states. Because the Constitution ensured that state interests were represented in the two elected branches of the federal government, Wechsler argued, it obviated the need for the Court to subject congressional legislation to judicial review on behalf of the states. In 1980, Jesse Choper extended Wechsler's emphasizing the importance of congressional committees and party leadership in the Senate and House of Representatives, as well as the emergence of state lobbies that formed in the nation's capital to combat federal power during the Great Society.2 Five years later, a majority of the Supreme Court adopted this line of argument, which has come to be called the safeguards thesis, in Garcia v. San Antonio Metropolitan Transit Authority: Me are convinced that the fundamental limitation that the constitutional scheme imposes on the Commerce Clause to protect the as is one of process rather than result. Any substantive restraint on the exercise of the Commerce Clause powers must find its justification in the procedural nature of this basic limitation, and it must be tailored to compensate for possible IMAGE FORMULA4 failings in the national political process rather than dictate a sacred province of state autonomy.'3 In recent years, however, the Court has largely abandoned the political safeguards thesis,4 aggressively overturning federal legislation on the grounds that it infringes upon the constitutional interests of individual states.' The Court has argued that Congress and other national political institutions have not-and perhaps cannot-protect the interests of states, particularly state officials. There is, the Court has claimed, a fundamental conflict between national and state institutions: to avert blame for the difficult choices they face, congressional members attempt to accomplish national goals while deflecting the responsibility of policy enforcement, implementation, and financing onto the states through the passage of unfunded mandates.6 Many law professors agree with the Court, arguing that Congress cannot be trusted with the representation of state actors and that there is little legal precedent for providing the national legislative branches with the opportunity to tread on state government terrain in the absence of IMAGE FORMULA7 judicial review.7 Even one of Wechsler's sympathizers, Mark Tushnet, has recently written, It seems fair to say that no one today believes that Wechsler's arguments retain much force.118 Through recent decisions, the Court has made emphatically clear that it believes it more effectively protects and advances state interests than does Congress or other national political institutions? In the face of these Court decisions and supporting legal scholarship, Larry Kramer has attempted to revive the Wechsler but with a twist.10 States are by the legislative process, claims Krameralthough not by constitutionally created institutions like the Senate or the Electoral College. Instead, he argues, the party system has protected the states by making national officials politically dependent upon state and local party organizations. Kramer asserts that because American parties are highly decentralized and responsive to voter interests, they do an excellent job of channeling the concerns of state and local voters and officials into national party platforms and agendas. …
I. INTRODUCTION The exclusionary rule has been under near-constant attack (1) since its inception as a federal constitutional device more than forty years ago. (2) The Supreme Court has consistently limited the rule's operation in criminal cases (3) and has refused to extend it to most contexts outside the criminal trial. (4) In Pennsylvania Board of Probation and Parole v. Scott, (5) the Court's most recent case addressing the exclusionary rule's application in a non-criminal proceeding, the Court refused to apply the rule to parole revocation hearings even though they might result in longer periods of incarceration than many criminal trials. (6) The Court concluded that police officers would not be sufficiently deterred by the suppression of evidence at revocation hearings to justify the relatively high costs that suppression would inflict. (7) This conclusion raises a fundamental question--if the exclusionary rule does not produce enough deterrence to police when illegally seized evidence puts a person at risk of going to jail, why would the rule produce any more deterrence when mere property is at stake? Scott suggests that the Court might retreat from its prior decision in One 1958 Plymouth Sedan v. Pennsylvania, (8) in which the Court applied the exclusionary rule to civil forfeiture. (9) One Plymouth Sedan remains the only Supreme Court case to apply the rule outside the criminal trial context. (10) Under the analysis employed in Scott, however, the application of the exclusionary rule in civil forfeiture hearings is in serious doubt. (11) If police officers are not sufficiently deterred by the prospect of evidence being suppressed at a hearing where a person's liberty is in jeopardy, it is a fortiori that they will not be deterred by the possibility of suppression at a civil forfeiture hearing where only the person's property is in jeopardy. Law enforcement officials have much to gain in the outcome of the issues raised in Scott, and will likely bring challenges to the exclusionary rule in civil forfeiture. While the court's trend is moving away from applying the exclusionary rule in civil contexts, law enforcement agencies are increasingly relying on civil tools to attack crime. (12) At the forefront of this movement is the use of civil forfeiture to seize the fruits and instrumentalities of the narcotics trade. (13) Civil forfeiture statutes allow law enforcement officers to seize privately held assets that have been used in a crime, a practice that not only frustrates narcotics traffic, but also fills public coffers. (14) Moreover, most civil forfeiture statutes carry with them low burdens of proof and few defenses, (15) thus providing governments with a powerful device that is far more streamlined than the time-consuming process of prosecuting a criminal. With so much at stake, law enforcement officials are likely to use Scott to mount challenges to the exclusionary rule in civil forfeiture. In fact, lower courts have not been silent on the vulnerability of One Plymouth Sedan. (16) A California appellate court has outright rejected the exclusionary rule in civil forfeiture: [The] application of the exclusionary rule in civil forfeiture actions is unnecessary and of little additional benefit, particularly when the property is owned by a third party claimant who has not been convicted of any offense. To date the United States Supreme Court has rejected application of the exclusionary rule to civil cases, and we decline to do so as well in this civil forfeiture case. (17) A Maryland court put it more bluntly: Has One 1958 Plymouth Sedan, whatever it stood for, retained its vitality over the thirty-three years since it was handed down? No, it has not. (18) This Article presents a counterargument to the encroachments on the continued use of the exclusionary rule in civil forfeiture proceedings. Part II examines briefly the Supreme Court's existing exclusionary rule case law. …
G. Theodore Mitau, Selected Aspects of Centralized and Decentralized Control over Campaign Finance: A Commentary on S. 636, The University of Chicago Law Review, Vol. 23, No. 4 (Summer, 1956), pp. 620-639