Uncategorized – Alan Rozenshtein

New Work in Progress: The Virtuous Executive

October 18, 2021September 30, 2022 Alan

Update (Sept. 30, 2022): I’ve posted a draft to SSRN. Comments welcome!

I have a new work in progress, tentatively titled “The Virtuous Executive,” in which I argue that certain character traits like loyalty, honesty, and judgment—what I call the executive virtues—play an essential role in the proper functioning of Article II and the broader separation of powers, and that this has concrete implications for constitutional law, including how Congress and the courts can and should check executive power. It’s still a very early version, so for now I’m only posting the table of contents and introduction (download here or preview below). I’d love to get feedback, so if you’d like to read a copy, please email me and I’ll send you the full draft. And if you have a faculty workshop slot you need to fill, I’d be delighted to present the paper.

20211018-Rozenshtein-The-Virtuous-Executive

New Draft Article: “Digital Disease Surveillance”

September 25, 2020 Alan

I’ve just posted a draft of a new article, Digital Disease Surveillance, which analyzes the legal and policy implications of digital surveillance (e.g., contact tracing, location monitoring) for disease prevention and control, especially in the context of COVID-19. Comments are very welcome. Here’s the abstract:

Fighting the coronavirus pandemic will require digital disease surveillance: the use of digital technology to enhance traditional public-health techniques like contact tracing, isolation, and quarantine. But legal scholarship on digital disease surveillance is still in its infancy. This Article fills that gap.

Part I explains why disease surveillance will play a key role in responding to coronavirus and future infectious-disease outbreaks. Part II explains how the “special needs” exception to the Fourth Amendment’s warrant requirement permits almost any rationally designed disease surveillance program. Part III suggests safeguards beyond what Fourth Amendment doctrine currently requires that could protect rights without diminishing surveillance effectiveness, including: review for effectiveness and equality, procedural requirements, and periodic legislative authorization. Part IV proposes a mixed standard for judicial review: courts should require these safeguards under an evolving understanding of Fourth Amendment reasonableness while tempering their review with deference to the political branches. Part IV concludes by outlining how the doctrinal evolution spurred by digital disease surveillance programs—the development of a “special needs with teeth” standard—might advance a key research agenda in criminal procedure: how to apply the Fourth Amendment to modern, data-driven surveillance regimes.

Atlantic Piece on RBG’s Death and the End of Liberal Faith in the Supreme Court

September 22, 2020September 25, 2020 Alan

I have a new piece in the Atlantic about RBG’s death and the end of liberal faith in the Supreme Court. It begins:

The death of Justice Ruth Bader Ginsburg ends an incredible legal career, one that advanced gender equality and inspired millions. RBG, as she became popularly known, was, like Thurgood Marshall before her, one of the handful of justices who, through their work as lawyers fighting for justice, can truly be said to have earned their spot on the judicial throne. But the outpouring of grief that has followed her death is not just for the passing of a revered figure in American law but also for the end of an important force in American society: the liberal faith in the Supreme Court.
This faith is more recent than many people recognize. A century ago, the biggest critics of the federal judiciary were on the left, and for good reason. For most of its history, the Supreme Court was the most conservative of the three branches of government, consistently blocking, or at least delaying, efforts at social, political, and economic reform. From Dred Scott and Plessy v. Ferguson, in which the Court upheld the subordination of racial minorities, to Lochner, which denied the government the ability to regulate much of economic life, the Court epitomized what William F. Buckley would later identify as the conservative credo: the impulse to “stand athwart history, yelling Stop.” By the Progressive Era and the Great Depression, it was widely held that the Supreme Court could only hinder, not help, the cause of reform.

Update, September 25, 2020: Here are some media appearances about the article:

Interview on Richard French Live:

Interview with KUER’s RadioWest.

Reading Notes: Michael Klarman, “Foreword: The Degradation of American Democracy”

September 8, 2020September 18, 2020 Alan

Michael Klarman has just posted a draft of his upcoming Harvard Law Review Supreme Court foreword, and it’s a doozy. There’s its sheer length: at 262 pages and 2841 (!) footnotes, it’s a full-fledged monograph (and by the time the law review editors are done with it, I’m sure it will be 20% longer). I had the good fortune of studying two semesters of constitutional history with Klarman in law school, and the article has all the hallmarks of his teaching: encyclopedic coverage, incredibly clear presentation, and a deep realism (mostly of the pessimistic variety) about the Supreme Court as a legal and political institution.

Klarman has always been a skeptic about American legal institutions. He’s argued that the Supreme Court played only an indirect role in the civil rights movement; too cautious to actually enforce Brown v. Board of Education, the Court’s role was mainly to create a violent backlash among segregationist southerners, which triggered its own backlash (to the backlash) among northerners, leading ultimately to federal civil-rights legislation. And Klarman has also updated the Beard thesis, arguing that the Constitution was an anti-democratic power grab by propertied elites who wanted to protect their privileges against democratic redistribution.

Klarman’s Foreword continues this bleak view. This time the target is American democracy itself, at least in its current state. Klarman’s argument isn’t novel, but I don’t think that was his intention. Instead, it’s a superb synthesis of what we might call the Standard View of American Democratic Decline: driven since the 1970s by changing demographics (the relative decline, both in terms of population and cultural dominance, of white Americans), rising inequality, and a Republican party willing to stoke white grievance in exchange for regressive economic policy. (In Ezra Klein’s great phrase, the Republican party is a machine for turning white grievance into tax cuts for the rich.) It’s a story that culminates in Trump’s authoritarianism, but the real villains (because they could have acted differently) are GOP elites who have enabled Trump at every turn.

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