New Work in Progress: The Virtuous Executive

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 Lawfare Post on What Biden’s Election Means

Alan

Co-authored with Ben Wittes and Quinta Jurecic. Punchline:

Perhaps most importantly of all, Biden can, simply by being himself, cure a long-standing constitutional defect of the Trump era: the national disgrace, visible around the world, of a president incapable of satisfying the most important qualification of his office, the responsibility to try, in good faith, to follow the law and uphold the Constitution. It is entirely within Biden’s power to act not only as the leader of his party but also as the head of state of his nation, to spare the country from lunatic Twitter rants and, merely by displaying basic decency, bring some measure of dignity back to the Oval Office.

Democracy is not a finish line to be crossed once and for all, but a struggle to be fought over and over again—every four years, every two years, every day. President-elect Biden’s victory means that, across the political spectrum, democracy’s believers get to keep fighting to preserve and strengthen it. After what the country has lived through for the past four years, that’s a thing worth celebrating without reservation.

Full post here.

New Lawfare Post on Why Congress, not the Supreme Court, Should Do Section 230 Reform

Alan

It begins:

The Supreme Court recently denied a request to clarify the meaning of Section 230 of the Communications Decency Act of 1996, which, as interpreted by lower courts, immunizes internet platforms from liability for user conduct. But Justice Clarence Thomas wrote separately to explain why the views the current dominant interpretation of Section 230 to be overbroad, arguing that the Supreme Court should, at some point in the future, correct this mistake. 

I’m of two minds as to Thomas’s statement. On the one hand, I agree with his legal analysis that lower courts wrongly read far more expansive liability protections into the law than Congress intended. On the other hand, I’m frustrated: Why has it taken until now for a justice to pay attention to Section 230? 

Full post here.

New Draft Article: “Digital Disease Surveillance”

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

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: Jeffrey A. Pojanowski, “Neoclassical Administrative Law”, 133 Harvard Law Review 852 (2020)

Alan

Jeffrey Pojanowski’s new article, published in January, makes three contributions to administrative law scholarship: (1) he surveys the current landscape of administrative law theory, identifying three distinct approaches; (2) he identifies a fourth, “neoclassical,” approach, emerging out of the recent jurisprudence of the Supreme Court’s moderate conservative wing; and (3) he defends the neoclassical approach as normatively superior to the alternatives. I find (1) to be wholly convincing and immensely helpful as a way of understanding contemporary administrative law, (2) to be a useful description of what judges like Chief Justice Roberts and Justice Kavanaugh think they’re doing, but (3) to be fundamentally unpersuasive.

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

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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