Note

Excising Federalism: The Consequences of Baker v. Carr Beyond the Electoral Arena

Some scholars argue that, because the post-Baker political question doctrine only implicates separation of powers at the federal level, the doctrine should be subsumed into standing doctrine, as the latter is similarly grounded in separation-of-powers concerns. This Note illustrates that we should not be too quick to relegate the political question doctrine to the doctrinal dustbin. As the history of the doctrine shows, a concern with federal courts’ involvement in the affairs of state governments in-formed the Court’s application of the doctrine before Justice Brennan transformed it in Baker. And as the examples of post-Baker cases like Larsen illustrate, there are areas of state governance where federal courts could use a doctrinal hook to avoid entangling themselves in state governmental procedures.

Justice Frankfurter argued in his Baker dissent that any list of factors for deciding justiciability should include federalism. As he put it, the “reluctance to interfere with matters of state government in the absence of an unquestionable and effectively enforceable mandate,” along with factors similar to those in Justice Brennan’s list, had “been decisive of the settled line of cases” dealing with Guarantee Clause challenges to state governmental action. As this Note has shown, Justice Frankfurter’s view not only carries historical weight, but his own list of relevant factors in political question cases could better handle cases like Larsen. Justice Brennan stated in Baker, “The political question doctrine, a tool for maintenance of governmental order, will not be so applied as to promote only disorder.” Ironically, his excision of federalism from the political question doctrine could promote the disorder he feared in cases like Larsen or DeJulio. Reincorporating federalism into the political question doctrine would therefore not only adhere to historical practice, but would also promote the “maintenance of governmental order” between the federal government and the states.

Appointing Chapter 11 Trustees in Reorganizations of Religious Institutions

Over the past decade, the bankruptcy filings of Roman Catholic dioceses have brought the previously underexamined possibility of church bankruptcies to the attention of scholars. At the same time, a large and growing number of less visible churches are resorting to chapter 11 reorganization, often as a last-ditch effort to keep faith communities together or to preserve ownership interests in the physical churches that serve as the anchors for those communities. However, the case law and scholarly literature treating the religious liberty implications of subjecting churches or other religious organizations to the provisions of the Bankruptcy Code remain limited in scope. This Note considers an important tool available to parties in interest in a chapter 11 reorganization: appointing a trustee to replace the existing management of a debtor. This mechanism allows for the replacement of bad actors in the leadership of a business so that the going concern value of the debtor’s enterprise can be maximized to the benefit of creditors. Given the corporate governance concerns that attend many church bankruptcies, this represents a powerful and useful tool for implementing more effective internal controls, building credibility with creditors, and effecting reorganizations.

However, when the business in question is a religious institution, the appointment of a trustee raises concerns relating to the religious liberty interests of the debtor. I conclude that these concerns should not bar the appointment of a trustee in the chapter 11 reorganization of a religious institution. In Part I, I will describe the causes of church bankruptcies and the functioning of the chapter 11 trustee as a potential remedy in those cases. In Part II, I will articulate the potential bases of religious liberty objections to such an appointment. In Part III, I will sketch the contours of how the scope of a trustee’s authority could be cabined so as to prevent infringing on the religious liberty interests of the debtor.

Confronting Big Data: Applying the Confrontation Clause to Government Data Collection

How did you stumble across this Note, and what does that say about you? What words you queried, how quickly you typed them, the web-sites you recently visited, and your current geographic location are all useful data points that can be aggregated to form an informative picture of who you are and what you have done.

Companies such as Google collect this data because it can be analyzed for patterns that can predict your future acts.  This predictive ability is useful to both a salesman predicting when you might purchase your next pair of shoes, as well as an FBI agent predicting when you may perform your next act of terrorism.  By collecting vast amounts of data, commonly referred to as “big data,” predictions can be exponentially more accurate than ever before.  In addition to predicting what you may do, analyzing big data allows for a more detailed depiction of what you have already done.  It is this backwards-looking feature of big data that this Note will address.

When government investigators request data from companies such as Google, they obtain data on targeted individuals with a guarantee that the data has been collected, stored, and analyzed properly. These guarantees constitute a testimonial statement under the Confrontation Clause.  Similar to lab analysts who submit test results of cocaine samples  or blood alcohol levels,  this Note argues that analysts involved with the collection, storage, and analysis of big data must be available for confrontation under the Sixth Amendment.  At least one federal appeals court has adopted a similar view.

In addressing the constitutionality of modern government surveil-lance, this Note examines a growing problem. Much of the contemporary academic debate regarding the constitutionality of government surveillance focuses on the President’s Article II authority and the Fourth Amendment.  Missing from this literature is a detailed discussion of the Confrontation Clause. This Note fills that void by examining the usefulness of the Confrontation Clause in addressing mass data collection by the government.

The usefulness of the Confrontation Clause becomes apparent when one considers the finite ability of the Fourth Amendment to address government data collection. Every federal appeals court to address the issue has found that the President possesses the inherent authority to collect data for foreign intelligence purposes without a warrant.  The President’s authority to collect data, however, does not provide the government with unfettered authority to use the data in a criminal proceeding against a defendant.  When data is presented at trial against a criminal defendant, the Confrontation Clause is implicated, and the clause’s ability to act as a check on government surveillance comes in-to focus.  This flexible check on government surveillance can be attained through the application of contemporary Supreme Court Confrontation Clause doctrine.

Many scholars, however, are hesitant to extend the Supreme Court’s contemporary Confrontation Clause doctrine.  This Note addresses their concerns, and explains why the common objections to extending current doctrine do not apply to big data transfers.  Moreover, the Supreme Court’s recent decision in Riley v. California  provides additional support for treating big data as unique.

In Part I, this Note will provide an introduction to big data and the legal authority for its collection by government investigators. Part II will explain the Supreme Court’s contemporary Confrontation Clause doc-trine. Part III will present the argument that the Confrontation Clause of the Sixth Amendment applies to big data transfers under two independent theories: one theory dealing with individual pieces or small collections of data, and another theory dealing with a novel application of the Mosaic Theory. Part IV will describe Google’s procedures for answering government requests for data, and will outline the small number of Google employees that would be required for confrontation.

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