Administrative Law

On February 14, 2019, hundreds of thousands of text messages were ensnared in a defective communications server—only to be released months later. By the time these messages reached their recipients, their worlds had changed: Heartfelt valentines arrived from loves now lost; other late-arriving messages seemed to come from the ghosts of the recently passed. It could have been worse. Text messages help to enable a wide variety of critical applications,...

For twenty-five years, the Federal Trade Commission (FTC) has brought enforcement actions against companies for data breaches using its statutory authority under Section 5 of the FTC Act to police “unfair or deceptive acts or practices.” While the Commission originally brought cases under the “deceptive” prong of Section 5, more recent cases have been brought under the vague “unfairness” prong. These cases allege that a company that...

Twentieth-century American constitutional, administrative, and corporate law were often contests over legal liberalism. We more or less accepted the basic liberal premise of separating the public from the private—and then battled over the relative size and power of the State versus the Market. At times, the State had the upper hand, and regu­latory and welfare programs proliferated. At other moments, the Market struck back, forcing the State...

The 2010s have been a momentous decade for Medicaid. With enrollment of over seventy-two million people (19% of the country’s population), Medicaid is the nation’s largest public health insurance program, and it is the primary or sole source of health insurance for vulnerable groups such as low-income children and pregnant women, adults with disabilities, and […]

Law should help direct—and not merely constrain—the development of artificial intelligence (AI). One path to influence is the development of standards of care both supplemented and informed by rigorous regulatory guidance. Such standards are particularly important given the potential for inaccurate and inappropriate data to contaminate machine learning. Firms relying on faulty data can be required to compensate those harmed by that data use—and...

KEYNOTE

Mariano-Florentino Cuéllar*

Introduction The majority of vehicles on California’s vast network of roads make con­siderable use of information technology. Although most are not yet capable of anything approaching fully autonomous driving, already it is possible to witness something like the following scene. A driver steering one vehicle spies a newer car’s reflection in the rear-view mirror. The […]

As the use of predictive technology expands, an increasing number of states have passed legislation encouraging or requiring judges to incorporate recidivism risk assessment algorithms into their bail, parole, and sentencing determinations. And while these tools promise to reduce prison overcrowding, decrease recidivism, and combat racial bias, critics have identified a number of potential constitutional issues that stem from the use of these algorithms....

In early 2018, the federal government announced that it would ask every person in the country about their citizenship status on the 2020 Census. Controversy immediately followed. The Constitution makes the decennial census the federal government’s very first express responsibility; it drove existential questions about represen­tation and funding in 1790 and has become no less important in the centuries since. Many observers, including several...