VOLUME 167, ISSUE 3 March 2019

Articles

Scholars and experts generally agree that rigorous enforcement of internal regulations within a police department promotes constitutional policing by deterring future misconduct and removing unit officers from the streets. In recent years, though, a troubling pattern has emerged. Because of internal appeals procedures, police departments must often rehire or significantly reduce disciplinary sanctions against officers who have engaged in serious misconduct.

By drawing on a national dataset of police union contracts, this Article analyzes the disciplinary appeals process utilized in a substantial cross section of large and midsized American police departments. It shows that the majority of these departments give police officers the ability to appeal disciplinary sanctions through multiple levels of appellate review. At the end of this process, many departments allow officers to appeal disciplinary sanctions to an arbitrator selected, in part, by the local police union or the aggrieved officer. Most jurisdictions give these arbitrators expansive authority to reconsider factual and legal decisions related to the disciplinary matter. And police departments frequently ban members of the public from watching or participating in these appellate hearings.

While each of these appellate procedures may be individually defensible, they may theoretically combine in many police departments to create a formidable barrier to officer accountability.

A new brand of plaintiff has come to federal court. In cases involving the Affordable Care Act, the Defense of Marriage Act, and partisan gerrymandering, government institutions have brought suit to redress “institutional injuries”—that is, claims of harm to their constitutional powers or duties. Jurists and scholars are increasingly enthusiastic about these lawsuits.

This Article contends, however, that government standing to assert “institutional injuries” rests on a fundamental misunderstanding of our constitutional scheme. The provisions of our structural Constitution are not designed for the benefit of institutions. Instead, the Constitution divides power between the federal government and the States and among the branches of the federal government for the benefit of the entire public. Government institutions have no greater interest in their official powers than any other member of society. Moreover, as this Article demonstrates, denying government standing to assert “institutional injuries” is not only consistent with constitutional structure, history, and precedent, but also reminds us of a basic principle: Individuals, not institutions, are the rightsholders in our constitutional system.

U.S. technology companies are increasingly standing as competing power centers that challenge the primacy of governments. This power brings with it the capacity to bolster or undermine governmental authority, as well as increasing public demands for the companies to protect users from governments.

The “Digital Switzerlands” concept encompasses two ideas: (1) that the U.S. technology companies are on par with, not subordinate to, the countries that try to regulate them, and (2) that they are, in some sense, neutral. The Digital Switzerlands concept sheds light on why the companies have begun to resist both the U.S. government and foreign governments, but it also means that the companies do not always counter governments. Understanding the relationship between companies, users, and governments as triangular, not purely hierarchical, reveals how alliances among them affect the companies’ behavior toward governments. But the companies’ efforts to maintain a posture of neutrality also carry a risk of passivity that may allow governmental attacks on users to go unchallenged.

Turning to the normative, does the rise of the companies as competing power centers benefit individual users? Does the companies’ lack of democratic attributes render them illegitimate powers? If the companies claim the benefits of the sovereign analogy, should they also be held to the public‐law values imposed on governments, and if so, how? And if there is value in the companies acting as Digital Switzerlands, how can this role be entrenched to prevent backsliding? This Article offers preliminary answers to these questions, while acknowledging that the answers may well evolve along with the companies’ behavior.

Comments

The #MeToo movement has failed to consider the plight of America’s most at‐risk populations suffering unabated sexual abuse: incarcerated women. While incarcerated women are technically afforded avenues for relief, these avenues prove improbable in practice given the procedural and systemic challenges to prisoners bringing successful legal claims generally, and to incarcerated persons—especially women—making out criminal complaints against guards for sexual violence in particular.

The myriad hurdles that combine to make criminal redress difficult to imagine in this context—including the lack of a criminal pro se equivalent and prosecutorial discretion that dictates criminal proceedings in the United States, as well as general credibility issues and power dynamics—have not rendered all attempts at imposing criminal liability entirely futile. Mechanisms and procedures could be made more robust in order to make criminal complaints a more effective and promising mode of redress for women who are sexually assaulted while incarcerated. Furthermore, if criminal prosecutions are pursued and terms of incarceration for assailant‐guards are actually handed down, criminal punishments against guards who assault female inmates may act as a deterrent of male‐guard‐on‐female‐inmate sexual violence.

The digitization of discovery has created new data security threats to parties’ proprietary data from third parties. The transfer of electronically stored information (“ESI”), in any instance, is antithetical to data security. The real issues on the duty to protect an opponent’s data arise when there is no protective order in place, or during the negotiations of such protective orders.

This Comment suggests a baseline standard of care that should be owed by a receiving party in discovery to protect the electronic data of the producing party. Where immense value is present in stored data, the receiving party’s duty of care to protect that data is of utmost importance. Establishing a baseline duty of care will provide certainty under the law and will play an essential role in future discovery negotiations.

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