Volume 2017, No. 5

Table of Contents

Articles

The Foundations of Constitutional Theory
Andrew Coan

Normative constitutional theory asks at least two distinct questions: How should judges and other officials approach constitutional decision- making? And what counts as a good reason—or “normative foundation”—for adopting a particular approach? The two questions are obviously related, but the first has filled libraries while discussion of the second has been largely unsystematic and ad hoc. There is no well-recognized taxonomy of the types of reasons on which an approach to constitutional decision-making might be premised. Nor is it widely appreciated that competing approaches might rest on the same type of normative foundation or that multiple normative foundations might be invoked to support a single approach to constitutional decision-making.

This Article proposes a taxonomy organizing the normative foundations of constitutional theory into four distinct categories: metaphysical, procedural, substantive, and positivist. This taxonomy clarifies that theoretical disagreement can concern the proper approach to constitutional decision-making, what counts as a good reason for adopting a particular approach, or both. It also permits analysis of the attractions and limitations common to each type of normative foundation, revealing significant points of overlap between apparently divergent approaches. Positivist originalism, for instance, may in some respects share more in common with positivist common-law constitutionalism than with metaphysical originalism. These points of overlap should serve as the basis for new and more productive discussion among theorists who have previously considered themselves completely at loggerheads.

One Person, No Votes: Unopposed Candidate Statutes and the State of Election Law
Noah B. Lindell

In thirty – eight states and the District of Columbia, state laws allow candidates running unopposed for certain offices to be “declared elected” without appearing on the ballot. These “unopposed candidate statutes” come in many varieties, but all deny people the ability to vote for the affected offices. This Article surveys the nation’s unopposed candidate statutes for the first time, exploring their idiosyncrasies and their interactions with other election laws. It then analyzes the statutes under four constitutional doctrines — the Burdick right – to – vote doctrine; the congressional voting clauses; one person, one vote; and the Guarantee Clause — showing how the statutes illuminate, and could change, the scope of each. Finally, the Article uses unopposed candidate statutes as a lens through which to examine two major debates in election law: whether courts should focus on encouraging competitiveness, and whether the purpose of voting is tabulative or expressive. Across both doctrine and theory, these unusual laws force us to reconsider our approach to the act of voting, stripped of its ability to affect the outcome of an election.

Crimmigration-Counterterrorism
Margaret Hu

The discriminatory effects that may stem from biometric ID cybersurveillance and other algorithmically-driven screening technologies can be better understood through the analytical prism of “crimmigration- counterterrorism”: the conflation of crime, immigration, and counterterrorism policy. The historical genesis for this phenomenon can be traced back to multiple migration law developments, including the Chinese Exclusion Act of 1882. To implement stricter immigration controls at the border and interior, both the federal and state governments developed immigration enforcement schemes that depended upon both biometric identification documents and immigration screening protocols. This Article uses contemporary attempts to implement an expanded regime of “extreme vetting” to better understand modern crimmigration-counterterrorism rationales and technologies.

Like the implementation of the Chinese Exclusion Act, extreme vetting, or enhanced vetting, relies upon biometric data as an anchor point for identity databasing and security screening. Thus, emerging vetting systems provide a timely example of the conflation of crime, immigration, and counterterrorism policy. It concludes that Critical Theory and theories of discrimination that stem from litigation surrounding crimmigration-counterterrorism policies may suggest legal avenues to guard against the risk of cyber-registries and algorithmic screening systems dependent upon biometric databases that may promote discriminatory vetting.


Comment

The Doctor Will See You Now-From 100 Miles Away: Navigating Physician Non-Compete Agreements in the Age of Telemedicine
Greta Mattison Megna

Telemedicine is revolutionizing healthcare by breaking down geographical barriers and increasing access to complex care. Patients in rural populations can “see” a doctor via videoconferencing over 150 miles away eliminating costly visits to larger cities. While the success of telemedicine is evidenced by its recent growth, this expansion has brought to light a number of legal concerns. This Comment analyzes one of those legal issues, the use of restrictive covenants in telemedicine, and considers whether they are enforceable under existing doctrine.

Specifically, this Comment argues that non – compete law is inadequate to deal with the unique aspects of physicians providing telemedical services. The possibility of an expansive (or even limitless) geographic scope of employment challenges the traditional “rule of reason” test used to evaluate non-compete agreements. This is further complicated by specialization and licensure requirements for those practicing in the medical field. Perhaps most concerning is the fact that patients, particularly those in rural communities, are severely impacted by these restrictive covenants. To address the law’s inadequacies and public policy concerns, this Comment proposes that telemedicine non – competes be presumed unenforceable, rebutted only by clear and convincing evidence that the employer’s interests greatly outweigh those of the physician and patients. To avoid judicial confusion, it is also suggested that state legislatures, guided by the American Medical Association, enact laws to address this issue.