Volume 71, Number 5 – February 2022

Articles

Not So Private
Stacey A. Tovino
PDF

Federal and state laws have long attempted to strike a balance between protecting patient privacy and health information confidentiality on the one hand and supporting important uses and disclosures of health information on the other. To this end, many health laws restrict the use and disclosure of identifiable health data but support the use and disclosure of de-identified data. The goal of health data de-identification is to prevent or minimize informational injuries to identifiable data subjects while allowing the production of aggregate statistics that can be used for biomedical and behavioral research, public health initiatives, informed health care decision making, and other important activities. Many federal and state laws assume that data are de-identified when direct and indirect demographic identifiers such as names, user names, email addresses, street addresses, and telephone numbers have been removed. An emerging reidentification literature shows, however, that purportedly de-identified data can—and increasingly will—be reidentified. This Article responds to this concern by presenting an original synthesis of illustrative federal and state identification and de-identification laws that expressly or potentially apply to health data; identifying significant weaknesses in these laws in light of the developing reidentification literature; proposing theoretical alternatives to outdated identification and de-identification standards, including alternatives based on the theories of evolving law, nonreidentification, non-collection, non-use, non-disclosure, and nondiscrimination; and offering specific, textual amendments to federal and state data protection laws that incorporate these theoretical alternatives.

Katz as Originalism
Orin S. Kerr
PDF

The “reasonable expectation of privacy” test of Katz v. United States is a common target of attack by originalist Justices and originalist scholars. They argue that the Katz test for identifying a Fourth Amendment search should be rejected because it lacks a foundation in the Constitution’s text or original public meaning. This is not just an academic debate. The recent ascendancy of originalists to the Supreme Court creates a serious risk that the reasonable expectation of privacy test will be overturned and replaced by whatever an originalist approach might produce.

This Article argues that originalist opposition to Katz is misplaced. Properly understood, the Katz test is consistent with both originalism and textualism. The reasonable expectation of privacy framework both accurately tracks the constitutional text and reflects a sound interpretation of its original public meaning. Instead of creating a constitutional free-for-all, the test merely preserves the original role of the Fourth Amendment against the threat of technological change. Ironically, the alternatives that originalist and textualist critics have proposed are either Katz in disguise or are less rooted in text and original public meaning than Katz itself. An originalist might want to restate Katz using the constitutional text. But that is a matter of form, not substance.

Notes

A Prohibition on Purely Local Purposes: The “General Welfare” Limitation of Congress’s Spending Power
Elizabeth L. Brown
PDF

Congress’s spending power allows the federal government to spend money to provide for the general welfare of the United States. While this “general welfare” language was initially understood as barring Congress from apportioning money for local purposes, the Supreme Court’s interpretation of the spending power has treated this limitation as effectively nonjusticiable. Consequently, the spending power has provided Congress with an attractive carrot to coax states into enacting regulations that Congress could not achieve through its other powers.

This Note challenges the notion that the general welfare limitation of the Spending Clause should be considered nonjusticiable. Instead, it calls for a return to the original understanding that the spending power could not be exercised to promote purely local purposes, an understanding that the Court adopted in its earlier spending cases. Relying on principles of collective action federalism and the “substantial effects” test from United States v. Lopez, this Note proposes distinguishing between general and local spending by looking at the anticipated effects of the spending beyond the recipient of the funds itself.

Why the Purcell Principle Should Be Abolished
Ruoyun Gao
PDF

The Supreme Court seeks to promote orderly and effective voting through the Purcell principle, which prohibits district courts from altering election rules via injunctions on the eve of an election. Applying this principle, a court considers only the proximity of the upcoming election. The underlying rationale of the Purcell principle is to avoid possible voter confusion and election chaos caused by lastminute changes. While these are legitimate concerns, the rigid Purcell principle has led courts to blindly reject any changes proposed shortly before the election—even when the changes are necessary for an orderly, effective election.

This Note identifies the drawbacks of the Purcell principle and argues for its abolition. In other words, courts should cease applying the Purcell principle and return to the Winter preliminary injunction standard, which requires courts to weigh plaintiffs’ likelihood of success on the merits, any irreparable harm to parties, the balance of equities, and the public interest. The Purcell principle is ambiguous in three key ways: whether it is a stand-alone rule or a subfactor; how close the election has to be for the principle to apply; and whether it applies to appellate decisions in addition to district courts’ orders. The consistent failure of the judiciary to clarify the principle in the hundreds of Purcell cases generated by the COVID-19 pandemic demonstrates that revising Purcell is impracticable.

Volume 71, Number 5 – February 2022

Articles

Not So Private
Stacey A. Tovino
PDF

Federal and state laws have long attempted to strike a balance between protecting patient privacy and health information confidentiality on the one hand and supporting important uses and disclosures of health information on the other. To this end, many health laws restrict the use and disclosure of identifiable health data but support the use and disclosure of de-identified data. The goal of health data de-identification is to prevent or minimize informational injuries to identifiable data subjects while allowing the production of aggregate statistics that can be used for biomedical and behavioral research, public health initiatives, informed health care decision making, and other important activities. Many federal and state laws assume that data are de-identified when direct and indirect demographic identifiers such as names, user names, email addresses, street addresses, and telephone numbers have been removed. An emerging reidentification literature shows, however, that purportedly de-identified data can—and increasingly will—be reidentified. This Article responds to this concern by presenting an original synthesis of illustrative federal and state identification and de-identification laws that expressly or potentially apply to health data; identifying significant weaknesses in these laws in light of the developing reidentification literature; proposing theoretical alternatives to outdated identification and de-identification standards, including alternatives based on the theories of evolving law, nonreidentification, non-collection, non-use, non-disclosure, and nondiscrimination; and offering specific, textual amendments to federal and state data protection laws that incorporate these theoretical alternatives.

Katz as Originalism
Orin S. Kerr
PDF

The “reasonable expectation of privacy” test of Katz v. United States is a common target of attack by originalist Justices and originalist scholars. They argue that the Katz test for identifying a Fourth Amendment search should be rejected because it lacks a foundation in the Constitution’s text or original public meaning. This is not just an academic debate. The recent ascendancy of originalists to the Supreme Court creates a serious risk that the reasonable expectation of privacy test will be overturned and replaced by whatever an originalist approach might produce.

This Article argues that originalist opposition to Katz is misplaced. Properly understood, the Katz test is consistent with both originalism and textualism. The reasonable expectation of privacy framework both accurately tracks the constitutional text and reflects a sound interpretation of its original public meaning. Instead of creating a constitutional free-for-all, the test merely preserves the original role of the Fourth Amendment against the threat of technological change. Ironically, the alternatives that originalist and textualist critics have proposed are either Katz in disguise or are less rooted in text and original public meaning than Katz itself. An originalist might want to restate Katz using the constitutional text. But that is a matter of form, not substance.

Notes

A Prohibition on Purely Local Purposes: The “General Welfare” Limitation of Congress’s Spending Power
Elizabeth L. Brown
PDF

Congress’s spending power allows the federal government to spend money to provide for the general welfare of the United States. While this “general welfare” language was initially understood as barring Congress from apportioning money for local purposes, the Supreme Court’s interpretation of the spending power has treated this limitation as effectively nonjusticiable. Consequently, the spending power has provided Congress with an attractive carrot to coax states into enacting regulations that Congress could not achieve through its other powers.

This Note challenges the notion that the general welfare limitation of the Spending Clause should be considered nonjusticiable. Instead, it calls for a return to the original understanding that the spending power could not be exercised to promote purely local purposes, an understanding that the Court adopted in its earlier spending cases. Relying on principles of collective action federalism and the “substantial effects” test from United States v. Lopez, this Note proposes distinguishing between general and local spending by looking at the anticipated effects of the spending beyond the recipient of the funds itself.

Why the Purcell Principle Should Be Abolished
Ruoyun Gao
PDF

The Supreme Court seeks to promote orderly and effective voting through the Purcell principle, which prohibits district courts from altering election rules via injunctions on the eve of an election. Applying this principle, a court considers only the proximity of the upcoming election. The underlying rationale of the Purcell principle is to avoid possible voter confusion and election chaos caused by lastminute changes. While these are legitimate concerns, the rigid Purcell principle has led courts to blindly reject any changes proposed shortly before the election—even when the changes are necessary for an orderly, effective election.

This Note identifies the drawbacks of the Purcell principle and argues for its abolition. In other words, courts should cease applying the Purcell principle and return to the Winter preliminary injunction standard, which requires courts to weigh plaintiffs’ likelihood of success on the merits, any irreparable harm to parties, the balance of equities, and the public interest. The Purcell principle is ambiguous in three key ways: whether it is a stand-alone rule or a subfactor; how close the election has to be for the principle to apply; and whether it applies to appellate decisions in addition to district courts’ orders. The consistent failure of the judiciary to clarify the principle in the hundreds of Purcell cases generated by the COVID-19 pandemic demonstrates that revising Purcell is impracticable.