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Washington and Lee Law Review - Volume 80:4


by Natalie Ram, Jorge L. Contreras, Laura M. Beskow, and Leslie E. Wolf

Federal Certificates of Confidentiality (“Certificates”) protect sensitive information about human research subjects from disclosure and use in judicial, administrative, and legislative proceedings at both the state and federal levels. When they were first authorized by Congress in the 1970s, Certificates covered sensitive information collected in research about drug addiction use. Today, however, they extend to virtually all personal information gathered by biomedical research studies. The broad reach of Certificates, coupled with their power to override state subpoenas and warrants issued in the context of law enforcement, abortion regulation, and other police powers typically under state control, beg the question whether Certificates are constitutional.

This Article, for the first time, examines the fundamental constitutional underpinnings of Certificates and situates them within the context of federal statutory privilege law. In so doing, it makes several contributions to the existing literature. First, after a brief background about Certificates and other congressional action relating to biomedical research, this Article argues that the Certificate statute creates a federal statutory privilege. To date, the language of privilege has been wholly absent from discussions of Certificates and their reach. Yet understanding the Certificate as a privilege provides well understood nomenclature and legal principles for applying the Certificate statute. Second, this Article locates the primary constitutional authority undergirding the Certificate statute in the Commerce Clause. Third, this Article argues that Congress’s power to tax and spend provides further constitutional grounding for Certificates, at least with respect to federally-funded researchers and institutions. For both bases of constitutional authority, this Article maps new territory, yielding clarity where there has previously been uncertainty. Fourth, this Article brings together constitutional doctrines limiting both congressional power and evidentiary privileges to illuminate how these doctrines may require Certificate protections to give way in exceptional cases. In so doing, it bridges traditional constitutional law and evidence law, reaping insights from their intersection from which scholars in both fields may benefit. Finally, this Article considers the implications of this constitutional analysis not only on Certificates, but also on congressional action aimed at regulating human subjects research more generally and on the law surrounding federal statutory privileges.


by Wayne Unger

The once science-fictional idea of mind-reading is within reach as advancements in brain-computer interfaces, coupled with advanced artificial intelligence, produce neurodata—the collection of substantive thoughts as storable and processable data. But government access to individuals’ neurodata threatens personal autonomy and the right to privacy. While the Fourth Amendment is traditionally considered the source of privacy protections against government intrusion, the First Amendment provides more robust protections with respect to whether governments can access one’s substantive ideas, thoughts, and beliefs. However, many theorists assert that the concept of privacy conflicts with the First Amendment because privacy restricts the flow of information while, on the other hand, the First Amendment is meant to promote the free flow of information. As technology advances and new categories of data are created and stored—like neurodata—it becomes more evident that the First Amendment actually promotes privacy by precluding government intrusion upon the freedom of thought and the right to a free mind.

This Article argues that the First Amendment serves as a more robust source of privacy protections than the Fourth Amendment, at least with respect to government intrusion into an individual’s neurodata, because such intrusion would violate the First Amendment’s right not to speak and the freedoms of thought and belief. As brain-computer interfaces become more prevalent, and produce more neurodata, the First Amendment’s well-established doctrines against compelled speech and its recognition of the freedom of thought ought to extend to prevent government access to an individual’s stored ideas, thoughts, and beliefs. In furtherance of this argument, this Article synthesizes First Amendment scholarship and proposes the Privacy Theory of the First Amendment to illustrate how the First Amendment broadly protects the privacy interests of individuals.


by Shannon M. Roesler

Since the New Deal era, our system of constitutional governance has relied on expansive federal authority to regulate economic and social problems of national scale. Throughout the twentieth century, Congress passed ambitious federal statutes designed to address these problems. In doing so, it often enlisted states as regulatory partners—creating a system of shared governance that underpins major environmental statutes, such as the Clean Water Act and the Clean Air Act. These governance structures remain important today as we seek to adapt our laws and institutions to the serious disruptions of climate change. But recent Supreme Court decisions challenge this long-established vision of governance. This raises a critical question: How resilient is our current system of constitutional governance?

Originally applied to the natural sciences, resilience theory has since inspired scholars across disciplines to think about how social-ecological systems respond to disruptive change. At the heart of resilience thinking is an attempt to balance stability with change. But as legal scholars of adaptive governance have argued, if our normative goal is to promote the resilience of ecosystems and natural resources, our system of governance must also encourage an ecological resilience that supports the flexibility and adaptive capacity of our governing institutions and laws. Not surprisingly, the adaptive governance literature focuses on democratic processes and institutions at all levels of government. Constitutional design is a background condition rather than a feature of adaptive governance or decision making.

But background conditions may impede or facilitate the emergence of adaptive laws. Moreover, the judicial interpretations of these conditions are less static and therefore capable of either facilitating or hindering the adaptive capacity of institutions and laws. The premise of this Article is that constitutional governance doctrines can and should balance the stability of static rule-of-law resilience with the flexibility required for adaptive governance in a climate-disrupted world. Judicial doctrines can enhance adaptive capacity by fostering shared, overlapping governance and regulatory flexibility. Unfortunately, recent doctrinal trends threaten to hinder adaptive capacity. This Article examines some of these constraining threads, including the narrowing of Congress’s authority under the Commerce Clause, the resurgence of the nondelegation doctrine, and doctrines governing state authority under the Dormant Commerce Clause.


by Yifat Naftali Ben Zion

Almost a century ago, a legal dispute over who is the rightful owner of Pepsi-Cola, at the time an unknown syrup company on the verge of bankruptcy, led the Supreme Court of Delaware to develop what is now famously known as the corporate opportunity doctrine. This doctrine is the central framework Delaware courts use to this day to determine whether an officer who seized a business opportunity has breached his fiduciary duties. Despite the doctrine’s old roots, it has thus far failed to reach stable ground. For one, while many corporate law scholars have supported the rule developed following this decision—which instructs the courts to consider not only the company’s interests, but also the officer’s “rights”—others have argued that the rule is too soft and even perversely so. For another, the application of this lenient rule has proven unstable. The corporate opportunity doctrine is vague and contested, as demonstrated by the contradicting rulings from other U.S. states. This Article suggests a way out of the mess. Using a comprehensive comparative analysis of the case law from the United States, the United Kingdom, and Canada, this Article demonstrates that the lenient interpretation of the corporate opportunity doctrine by Delaware courts is misguided and results from a misunderstanding of its normative foundations. The corporate opportunity doctrine derives from the general principles of fiduciary law, and thus a theoretical understanding of the concept of “fiduciary” is crucial for its proper application. As this Article shows, this decisive aspect of the doctrine has been largely neglected by the literature. By taking a “first principles” approach and going back to the roots of this concept, this Article demonstrates that neither side in this ongoing debate on the desirability of the doctrine is free from error. It concludes that the lenient position should be rejected and explains how to ameliorate current legal instability.


by Mariya Denisenko

Government sponsored segregation of urban neighborhoods has detrimentally impacted the health of Black Americans. Over the last century, federal, state, and local governments have promulgated racist laws and policies that shaped the racial divide of communities in major metropolitan cities. This divide has contributed to poor health outcomes and large discrepancies in life expectancy for Black Americans when compared to their White counterparts. While health is impacted by various factors, segregation has been shown to impose various challenges that make it difficult for Black Americans to attain good health.

Segregated Black communities struggle with economic inequality, environmental racism, and face difficulties accessing healthcare services. All these challenges have been linked to poor health outcomes. This Note argues that the federal government must make amends for its role in shaping the segregated communities of America. The federal government should do this by passing a comprehensive reparations package to address economic inequality, environmental pollution, and barriers to accessing healthcare services that stem from segregation. Although such sweeping legislation is likely to face legal challenges, Congress can rely on its power to eliminate all badges and incidents of slavery under the Thirteenth Amendment to uphold the legislation in the courts.


by Scott Koven

To combat the continued devastation wrought by the opioid crisis in the United States, forty-eight states have passed medical amnesty (or “Good Samaritan”) laws. These laws provide varying forms of protection from criminal punishment for certain individuals if medical assistance is sought at the scene of an overdose. Thus far, the nascent scholarly conversation on medical amnesty has focused on the types of statutory protections available and the effectiveness of these statutes. To summarize, although medical amnesty laws have helped combat drug overdose, the statutes are replete with arbitrary limitations that cabin their life-saving potential.

This Note extends the dialogue on medical amnesty in two ways. First, it examines how judges, in applying these laws, can either frustrate or promote their life-saving purpose. Second, this Note connects the conversation on medical amnesty laws to the broader context they have entered—namely, the United States’ troubled history with the criminalization of addiction.

Medical amnesty laws reflect a legislative interest in health over punishment. Today, substance use disorder is recognized as a medical, neurological issue and the overdose crisis is recognized as a public health phenomenon. This Note argues that, both in statutory language and judicial application, gaps in the medical amnesty response stray from this reality and instead reflect the stigmatizing, racist normative view promoted during the War on Drugs—that substance use is a moral failing, symptomatic of a lack of personal responsibility. This Note’s key point is that, as long as legislators and judges fail to acknowledge, interrogate, and learn from the United States’ prior failures in responding to addiction, fatal gaps will continue to exist both in medical amnesty laws and in the broader response to the drug overdose crisis.