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Volume 15, Issue 2

The Religious Freedom Restoration Act, Trinity Lutheran, and Trumpism: Codifying Fiction with Administrative Gaslighting

By: Maril, Robin S. | December 1, 2020

This article addresses the Trump administration’s consistent misinterpretation and misapplication of legal precedent to support unnecessary religious exemptions that exceed Constitutional mandates and impair the rights of third parties to access federal services and programs. Proponents of this routinized repeal of civil rights protections argue that the Trump administration is merely restoring the correct balance of religious liberties in the federal government. However, the regulations and policies included in this campaign unconstitutionally broaden the already robust religious protections provided by statutes and court decisions and have the effect of dismantling the civil rights infrastructure of the past 50 years. Despite the absence of clear guidance from the Court, the Trump administration has consistently pointed to Trinity Lutheran Inc., v. Comer and Burwell v. Hobby Lobby Stores, Inc. as mandates to protect and enable religious-based discrimination by federal grantees and contractors delivering federal services. In doing so, the administration has dismissed the consensus of legal scholars and commentators regarding the limitations of these opinions. This article concludes that, given the faulty legal support of these cases, all regulations implemented under them are legally specious and should be vacated by courts when challenged. The federal register is no place for “alternative facts.”

Trading Privacy for Promotion? Fourth Amendment Implications of Employers Using Wearable Sensors to Assess Worker Performance

By: Dery, George M., III | December 1, 2020

This Article considers the Fourth Amendment implications of a study on a passive monitoring system where employees shared data from wearables, phone applications, and position beacons that provided private information such as weekend phone use, sleep patterns in the bedroom, and emotional states. The study’s authors hope to use the data collected to create a new system for objectively assessing employee performance that will replace the current system which is plagued by the inherent bias of self-reporting and peer-review and which is labor intensive and inefficient. The researchers were able to successfully link the data collected with the quality of worker performance. This technological advance raises the prospect of law enforcement gaining access to sensitive information from employers for use in criminal investigations. This Article analyzes the Fourth Amendment issues raised by police access to this new technology. Although the Supreme Court currently finds government collection of a comprehensive chronicle of a person’s life to constitute a Fourth Amendment search, widespread employee acceptance of mobile sensing could undermine any claim in having a reasonable expectation of privacy in such information. Additionally, employee tolerance of passive monitoring could make employer data available to the government through third party consent. When previously assessing employees’ privacy, the Court demonstrated a willingness to accept the needs of the employer and society as justification for limiting workers’ Fourth Amendment rights. Ultimately, then, Court precedent suggests that passive monitoring could erode Fourth Amendment rights in the long term.

Legal Clinics and the Better Trained Lawyer, Part II: A Case Study of Accomplishments, Challenges and the Future of Clinical Legal Education

By: Geraghty, Thomas | December 1, 2020