Constitutional Law

Issues to Watch

Facial Recognition Technology: First and Fourth Amendment Implications


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Facial Recognition Technology: First and Fourth Amendment Implications

Ashley Triplett*

On October 18, 2016, the Georgetown Law Center on Privacy & Technology released a report regarding the use of facial recognition technology in law enforcement agencies throughout the country.  Clare Garvie et al., The Perpetual Line-Up: Unregulated Police Face Recognition in America 1 (2016), https://www.perpetuallineup.org/sites/default/files/2016-12/The%20Perpetual%20Line-Up%20-%20Center%20on%20Privacy%20and%20Technology%20at%20Georgetown%20Law%20-%20121616.pdf.  According to the report, over 117 million American adults are subject to face scanning programs with their picture in a law enforcement database.  Id.  The report highlights the risks of such programs and calls for legislative oversight at the state and federal level.  See id. at 1–6.

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Issues to Watch

Taxing & the Internet: Is It Time to “Reevaluate” National Bellas Hess, Inc. v. Department of Revenue of Illinois?


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Taxing & the Internet: Is It Time to “Reevaluate” National Bellas Hess, Inc. v. Department of Revenue of Illinois?

Gregory Waterworth*

Marylanders pay taxes on purchases from Amazon.com, but do not pay taxes when shopping at Overstock.com. This arbitrary phenomenon stems from one source, National Bellas Hess, Inc. v. Department of Revenue of Illinois.  386 U.S. 753 (1967). Years ago—before the Internet, smart phones, or the ability to have an online order delivered within an hour—the Supreme Court drew a line in the sand.

Bellas Hess determined when a state can require a retailer to collect and remit taxes. Id. Bellas Hess, a clothing retailer based in Missouri, challenged an Illinois law that required out-of-state companies, such as Bellas Hess, to collect and remit taxes for in-state consumers. Id. Illinois argued that because the retailer advertised in the state and delivered orders via common carriers and mail, it had enough of a presence in the state to justify taxing. Id. at 754. The Court disagreed. Id. at 759–60. To the Court, Bellas Hess was an issue of interstate commerce and the ever popular dormant Commerce Clause. Id. The Court reasoned that allowing Illinois to require out-of-state sellers to collect taxes would be the equivalent of inviting every other locality nationwide to do the same. Id. Further, the Court warned that to do so would “entangle [Bellas Hess’s] interstate business in a virtual welter of complicated obligations to local jurisdictions with no legitimate claim to impose a fair share of the cost of the local government.” Id. at 759. Thus, the Court created a bright-line rule: no taxing, unless physical presence. Id. at 760. So why do Marylander’s pay taxes on purchases from Amazon.com, as opposed to Overstock.com? The answer is an Amazon.com warehouse on 2010 Broening Highway in Baltimore. (more…)

Issues to Watch

The Constitutionality of Local and State Cash Bail Systems


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The Constitutionality of Local and State Cash Bail Systems

Marleigh Davis*

Lately there has been a push encouraging states to move away from fixed cash bail systems and the practice of jailing those who cannot pay.  Pete Williams, Justice Department Says Poor Can’t Be Held when They Can’t Afford Bail, NBC News (Aug.19, 2016, 5:10 PM), http://www.nbcnews.com/news/us-news/justice-department-says-poor-can-t-be-held-when-they-n634676.  The U.S. Justice Department took a stand on this issue in late August after filing a brief with the United States Court of Appeals for the Eleventh Circuit, alleging that the fixed cash bail practice is in violation of the Equal Protection Clause of the Fourteenth Amendment. Associated Press, Feds Say That It’s Unfair to Hold Poor Defendants if They Can’t Afford Bail, Fortune (Aug. 20, 2016, 7:37 PM), http://fortune.com/2016/08/20/poor-defendants-bail/.  The Justice Department argues that local courts that jail poor arrestees because they cannot pay bail are discriminating against the poor, thus violating the Equal Protection Clause.  Id.

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Issues to Watch

Preventing Undue Burden on a Woman’s Right to Abortion: The Recent U.S. Supreme Court Decision that Echoes Legal Theories in Roe v. Wade


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Preventing Undue Burden on a Woman’s Right to Abortion: The Recent U.S. Supreme Court Decision that Echoes Legal Theories in Roe v. Wade

Eboni Mosley*

“Reproductive freedom is critical to a whole range of issues. If we can’t take charge of this most personal aspect of our lives, we can’t take care of anything. It should not be seen as a privilege or as a benefit, but a fundamental human right.”

– Faye Wattleton (first African-American and youngest person to be elected president of Planned Parenthood Federation of America)

On June 26, 2016, the U.S. Supreme Court invalidated two provisions of Texas House Bill 2 because both unjustifiably made it more difficult for women within that state to get an abortion. Whole Women’s Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016); see also H.B. 2, 83d Leg., 2d Spec. Sess. (Tex. 2013). The first provision provides: “A physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced.” Hellerstedt, 136 S. Ct at 2300; H.B. 2 § 2 (codified at Tex. Health & Safety Code § 171.0031). The second provision provides: “[T]he minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [the Texas Health and Safety Code section] for ambulatory surgical centers.” Hellerstedt, 136 S. Ct at 2300; H.B. 2 § 8 (codified at Tex. Health & Safety Code § 245.010(a)). In brief, the first provision makes it more challenging for doctors to qualify to perform abortions. The second provision, essentially, regulates abortion clinics as strictly as hospitals. Hellerstedt serves as a pivotal reminder to state legislatures that women’s access to abortion services cannot be unjustifiably restricted.

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Issues to Watch

The “Textalyzer”: A Violation of the Fourth Amendment or a Life Saving Device?


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The “Textalyzer”: A Violation of the Fourth Amendment or A Life Saving Device?

Marleigh Davis*

With distracted driving statistics revealing the large number of people who dangerously choose to use their cell phones while driving, the question arises of how many accidents occur because of this phenomenon and whether they could be prevented? New York’s legislature is attempting to take action to help end this common practice with a device called a “Textaylzer.” N.Y. Sen. S6325A, 2016 Leg., Sess. (N.Y. 2016). Road patrol officers would each have one of these devices which would be used to see if an individual in a car accident was using a phone at the time of the accident or immediately before it. See id. Is this device, however, constitutional after the Supreme Court held in 2014 that police officers need a warrant to search a phone? See Riley v. California, 134 S. Ct. 2473, 2495 (2014). Can this device be easily compared to the Breathalyzer that is used in the fight against drunk driving? Noah Feldman, Breathalyzers, Textalyzers and the Constitution, Bloomberg (Apr. 28, 2016, 11:56 AM), https://www.bloomberg.com/view/articles/2016-04-28/breathalyzers-textalyzers-and-the-constitution.

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