Volume 160, Issue 5 
April 2012

Searching Secrets

Nita A. Farahany

A Fourth Amendment violation has traditionally involved a physical intrusion such as the search of a house or the seizure of a person or her papers. Today, investigators rarely need to break down doors, rummage through drawers, or invade one’s peace and repose to obtain incriminating evidence in an investigation. Instead, the government may unobtrusively intercept information from electronic files, GPS transmissions, and intangible communications. In the near future, it may even be possible to intercept information directly from suspects’ brains. Courts and scholars have analogized modern searches for information to searches of tangible property like containers and have treated protected information like the “content” inside. That metaphor is flawed because it focuses exclusively on whether information is secluded and assigns no value to the substantive information itself.

This Article explores the descriptive potential of intellectual property law as a metaphor to describe current Fourth Amendment search and seizure law. It applies this new metaphor to identifying, automatic, memorialized, and uttered evidence to solve current riddles and predict how the Fourth Amendment will apply to emerging technology. Unlike real property law, intellectual property law recognizes that who authored information—and not just how or where it was stored—informs the individual interests at stake in that information. The exclusive rights of authors, including nondisclosure, are interests recognized by copyright law. Recognizing the secrecy interests of individuals has broad implications for the Fourth Amendment in the information age. Together with real property law, an intellectual property law metaphor better describes emerging doctrine, which has required greater government justification to search certain categories of information. But it also reveals the normative shortcomings of current doctrine when the secrets the government seeks are automatically generated information that arises from computer activities, via GPS tracking, or are emitted by our brains.

Adaptable Due Process

Jason Parkin

The requirements of procedural due process must adapt to our constantly changing world. Over thirty years have passed since the Supreme Court in Goldberg v. Kelly and Mathews v. Eldridge adopted what appears to be a dynamic, fact-intensive approach to determining the procedures required by the Due Process Clause. Federal, state, and local government agencies responded by establishing new procedural safeguards, many of which are virtually identical to those in use today. Yet, for public benefits programs such as welfare, the intervening decades have brought striking changes. The 1996 federal welfare law created new and powerful incentives to trim the rolls. Work requirements increased the proportion of recipients holding jobs, forcing many to choose between forgoing their due process rights and jeopardizing their employment by missing work to attend a hearing. Technological advances enabled welfare agencies to cut off benefits based on automated eligibility determinations that are difficult for recipients to challenge. Cuts in funding for legal services made the prospect of legal representation at fair hearings remote.

These new facts and circumstances undermine the effectiveness of existing procedures and may require reweighing the Mathews factors to determine what process is due to welfare recipients. Such changes are not unique to welfare; the facts and circumstances relevant to many of the procedural safeguards established since the due process revolution will evolve in the years to come, if they have not already. Although the Supreme Court has not addressed whether or how existing procedures should be adapted to such changes, adapting the demands of due process to new facts and circumstances is faithful to constitutional doctrine and necessary to ensure that existing procedures continue to provide due process of law. It also provides an opportunity to reinvigorate a conversation about procedural justice that went silent many years ago.

Redistricting and the Territorial Community

Nicholas O. Stephanopoulos

As the current redistricting cycle unfolds, the courts are stuck in limbo. The Supreme Court has held unanimously that political gerrymandering can be unconstitutional—but it has also rejected every standard suggested to date for distinguishing lawful from unlawful district plans. This Article offers a way out of the impasse. It proposes that courts resolve gerrymandering disputes by examining how well districts correspond to organic geographic communities. Districts ought to be upheld when they coincide with such communities, but struck down when they unnecessarily disrupt them.

This approach, which I call the “territorial community test,” has a robust theoretical pedigree. In fact, the proposition that communities develop geographically and require legislative representation has won wide acceptance for most of American history. The courts have also employed variants of the test (without scholars previously having noticed) in several related fields: reapportionment, racial gerrymandering, racial vote dilution, etc. The principle of district-community congruence thus animates much of the relevant case law already. The test is largely unscathed, furthermore, by the unmanageability critique that has doomed every other potential redistricting standard. The courts have shown for decades that they can compare district and community boundaries, and the social science literature confirms the feasibility of such comparisons. Finally, the political implications of the test’s adoption would likely be positive. My empirical analysis suggests that partisan bias would decrease, relative to the status quo, while electoral responsiveness and voter participation would rise.

It is true that the territorial community test does not directly address partisan motives or outcomes. But the Court has made clear that it views these issues as doctrinal dead ends. Ironically, the only way left to combat gerrymandering might be to strike at something other than its heart.


Toward a Constitutional Chevron: Lessons from Rapanos

Cory Ruth Brader

In 2006, the Supreme Court started a revolution in environmental law.  In Rapanos v. United States, while addressing jurisdiction over wetlands under the Clean Water Act, the Court purported to clarify an issue of statutory interpretation. In reality, the Court had reentered the fray in a four-way struggle for supremacy in constitutional meaning.  This struggle involves all three branches of government and, to a large extent, the federal agencies that implement the Constitution as part of their everyday function:  the U.S. Army Corps of Engineers (the Corps) and the U.S. Environmental Protection Agency (EPA).

The Rapanos decision was widely criticized when it was handed down, but there has been no real empirical analysis of how the decision has affected the agencies’ on-the-ground interpretations of their own jurisdiction.  In this Comment, I examine the fallout from Rapanos—beginning with its impact on the judicial, legislative, and executive branches—and then focus on its impact on the Corps’s process for determining its own jurisdiction.  Procedurally, the main effect of the decision has been to add density to the Corps’s already onerous permitting process.  Substantively, the decision has forced the Corps to add an unnecessary judicial gloss to its scientific determinations, imposing court-like reasoning onto professional engineers.  Perhaps worst of all, the increased enforcement costs of these changes have been shifted to the regulated community.  All players in the game—developers seeking quick disposition of permitting requests, environmentalists pursuing wetlands protection, and agency personnel tasked with making jurisdictional determinations—have come out as losers after Rapanos.


Based on these findings, I propose a radical shift in judicial review of agency constitutionalism and argue that the Court should apply the Chevron doctrine to certain agency constitutional interpretations.  In particular, where Congress has clearly delegated constitutional definition to an agency and such definition implicates agency expertise, courts should explicitly grant Chevron deference to the agency constitutional interpretation.  This paradigm would allow Congress the broadest possible latitude in exercising its power and would restore the institutional benefits lost when courts impose judicial constraints on administrative agencies that operate differently from the courts by design.  Thus, when Congress clearly delegates constitutional interpretation to agency expertise, the judiciary should defer to the agency’s interpretations so long as they are reasonable.

Construing Crane: Examining How State Courts Have Applied its Lack-of-Control Standard

Janine Pierson

The Supreme Court recently upheld the constitutionality of a federal statute that authorizes the Department of Justice to civilly commit federal prisoners after their release if they suffer from a mental illness or abnormality that causes “serious difficulty in refraining from sexually violent conduct.” Not only has the federal government authorized civil commitment for sexually violent predators, but as of 2009, twenty states have also enacted statutes authorizing the same. By 2006, more than 3646 people had been detained or committed under these laws. Such commitments generally occur in secure mental health facilities, some of which are connected to, or within, prisons. A person committed under a sexually violent predator law is committed until he no longer presents a danger to the community. This often results in commitment for life; the New York Times reported that, as of 2007, only 250 civilly committed sex offenders had been released from confinement. Often unsympathetic characters in the courtroom, sex offenders face an uphill battle in proving that they should be set free despite their past offenses.

Statutes providing for the civil commitment of sexually violent predators typically require that the State prove at least three elements before commitment can be effected: (1) the defendant must have been convicted of, or at least have been charged with, a sexually violent offense; (2) the defendant must have a mental disorder or abnormality, generally defined as “a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others”; and (3) there must be a prediction of future dangerousness—a likelihood that the defendant will continue to engage in sexually violent behavior. In the landmark decision Kansas v. Crane, the Supreme Court held that, in addition to these statutory elements, “there must be proof of serious difficulty in controlling behavior” before the state may, consistent with due process, subject the defendant to civil commitment.

While the application of Crane’s holding—that there must be proof that the offender lacks control—is problematic on account of its ambiguity, this Comment argues that there are ways in which courts can better apply the standard to ensure that due process is provided to defendants. Specifically, Crane mandates that states require a separate finding on the issue of whether the defendant has serious difficulty controlling his behavior. In light of this mandate, states should attempt to operationalize the evidentiary requirement by developing a standard definition—grounded in the norms and judgment of the community—on the issue of what constitutes serious difficulty in controlling oneself to assure a more consistent and fair application of the concept across cases. In addition, state courts should restrict expert testimony to a qualitative description of the defendant’s ability to control himself rather than permitting experts to render ultimate conclusions. Lastly, juries should be instructed that there is no generally accepted method for measuring volitional impairment in the mental health community. These procedures will help ensure that the trier of fact understands that “proof of serious difficulty in controlling behavior” is a legal standard and can then properly weigh expert testimony.

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