The Faculty Lounge

Sovern on Rankings and Law School Priorities: A One Act Play

A recent ssrn digest brings news of Jeff Sovern's latest, "Rankings: A Dramatization of the Incentives Created by Ranking Law Schools." Here's his abstract:

Sellers in a competitive market shift resources from attributes buyers don't care about to attributes buyers do care about. In markets in which buyers rely on imperfect signals for quality, sellers move resources away from improving the quality of their product to enhancing the illusion of quality. For example, before freshness dating, when consumers tested the freshness of bread by squeezing it, bakers reportedly added chemicals to bread to preserve its softness longer, thereby creating the illusion of freshness. Similarly, law school rankings encourage schools to shift resources away from improving the quality of the education they provide in favor of investing in improving their standings in the rankings. Consequently, under the guise of serving the market, rankings which are based on the wrong criteria are likely to subvert the market because they both fail to measure accurately the quality of a school's education and reduce the quality of legal education.

This piece dramatizes some of the ideas discussed in the preceding paragraph. It takes the form of a fifteen minute-play with three characters: a law school dean, a junior law professor, and a law student. The play illustrates how the incentives created by a ranking system could affect law schools and their administrators, faculty, and students. The play format is intended to make the ideas expressed more vivid.

This is similar at some points (though different in form and broader in scope) to stuff we've been hearing a lot about recently, especially from Brian Tamanaha.  I'm always glad when people talk about things like priorities and expenses at law schools.

Alfred Brophy

Summer Submissions to the Alabama Law Review

This summer, the Alabama Law Review is trying out a new program, which promises an expedited review (an answer up or down within two weeks) for articles where the author promises to publish with law review if the article is accepted.  Whew, that's a mouthful.

Chris Ezell the Acquisitions Editor for the Alabama Law Review asked me to post a note about the program:

This year, the Alabama Law Review is beginning a Summer Submission Reading Program.  Alabama Law Review will be accepting special summer submissions starting Monday, May 19.

If you submit in our special summer program, we will guarantee you either an offer or a rejection within two weeks of your submission to Alabama Law Review.  In return, if we offer publication, we ask that you withdraw your article from consideration at other law reviews.  In addition, we ask that if you receive another offer of publication and have to withdraw that you notify us as soon as possible.

To participate:
1.  Submit your article to us through expresso or
2.  Send acquisitions@law.ua.edu a separate email with “Summer Submission (Your Last Name)” in the title, and include the link to your article on the body of the email.

A Lesson In (In)credibility: LAPD Discovers It's Perfect

The Los Angeles Police Department announced, yesterday, that after looking into over 300 complaints of racial profiling, every single claim had no merit.  The news is even better: according to the LA Times story, this is the sixth straight year that the department has concluded that every single profiling claim was groundless.  Here's the problem: nobody can take these results seriously.

First off, there's the general problem that American human beings are not race blind.  Then there's the more specific problem that police officers are not race blind - perhaps for rational (albeit legally and morally unacceptable) reasons (e.g., an officer's life experience may teach him that specific racial heuristics produce better arrest results.)  And finally there's the most specific problem of all: the LAPD is a department with historical issues in the area of race.

I'm not here to do battle with the department's conclusions.  I don't believe them, and I suspect that I'm not alone in my doubts.  But there is another point worth focusing on.  The credibility of an investigation, a lawyer, a sales person, all depend on that person's awareness that the world is not perfect.  This certainly resonates in the context of auto sales.   Concede that the Camry is a good car, with a great track record, and I'm much more likely to believe you when you tell me that the Altima has its own special merits.

For trial lawyers, this is crucial wisdom.  For example, witnesses with perfect testimony begin to look unbelievable - everyone has some blemishes.  It may even benefit the party that brings a witness to intentionally surface a few problems; it makes the testimony look real.   Similarly, a lawyer's closing arguments may want to embrace and concede evidentiary flaws in the case.   Jurors don't like being oversold any more than customers at the Ford dealer.  The fact that the world is a messy place doesn't mean that one side isn't right. 

The same holds true in politics.  One thing we learned over and over again is that American's embraced Bill Clinton despite, and perhaps even because of, his flaws.

If the LAPD had found several legitmate cases of profiling, we might have believed that they'd at least tried to investigate fully.  As it is, the discovery of perfection only serves to undermine the search process itself. 

Theorizing The FLDS Case: Should Texas Terminate Parental Rights?

Harry Brighouse, a philosopher at UW Madison, has a nice post considering the question of when a state ought to terminate parental rights.  (It's based on his article, with Adam Swift, Parents' Rights and the Value of the Family.)  He proposes a two-part algorithm.  First, have the parents met the preconditions for having fundamental parental rights?  Parenting, he argues, provides the parent a particular sort of intimacy which uniquely promotes human flourishing.    But when a parent  fails to attend to the child's interests sufficiently, he or she loses her fundamental rights to parent.

This doesn't end the matter, however, because at this point the child's interest surfaces.  Once a parent has forfeited rights, the state must "ask whether terminating parental rights will, given the real institutional alternatives, be better for the kids than not doing so.  This bar, frankly, is usually pretty high, because it takes pretty serious abuse and neglect to make a child worse off than they would be in the foster care system."

Brighouse then offers three reasons why the foster care option is sketchy: first, it's disruptive to place a kid in foster care against his or her parents' wishes; second, original parents have lots of legal protections that result in kids often being shuttled back and forth between original and foster parents before any adoption can occur; and third, "some foster parents are pretty bad."

Thus, while he believes it's likely that many of the FLDS have forfeited their fundamental parenting rights, he's uncomfortable how matters play out with respect to the second prong: the childrens' best interests.  Perhaps in a different world termination might make sense, but we don't live in that world.  He concludes:

The fact that original parents have so many protections is, of course, something the State, itself, has control over (as, to some extent, is the quality of the foster care system). Maybe the state should reform the law so that children can easily and quickly be fostered-then-adopted, and original parents have little say. But for these particular children (and the courts making the decision) there is no prospect of law being reformed in that way. And there are reasons, given the history of the US into very recent times, for being very uneasy about giving State governments that sort of power given the history of the use of state power against despised groups of parents in the US.

Image of the FLDS compound courtesy of this site. 

Law School Visitors: The 2008-09 List

Updated on April 30 with data received through April 27.

I'm pleased to announce the first second iteration of this year's law school visiting professor list.  This does not include visiting assistant professors who have yet to take their first full-time tenure track position.  The entire list appears after the jump.    I'm not sure that it will read perfectly on all computers so a link to an Excel version of the document appears at the top of the list, immediately after the jump.

As always, the list is both incomplete and (almost certainly) somewhat inaccurate.  I am again making corrections immediately to the list as posted here, but will not update the downloadable version until the next update.  Please keep emailing me information at danielmfiller@gmail.com.

Thoughts on The Free Flow of Information Act - Part I

In an opinion piece in USA Today, Attorney General Michael Mukasey sounds off against the Free Flow of Information Act presently being debated in Congress. If enacted into law, the measure would protect members of the press under certain circumstances from being compelled to identify  informants or the information they traded on a promise of confidentiality. Mukasey argues that the bill would put reporters "above the law" and "impede investigations of serious crimes," including terrorism and other threats to national security. Besides, he says, the most notable news stories, think Pentagon Papers, Watergate break-in, Enron scandal, all broke with the help of confidential informants whose identity was not protected by a statutory reporter's shield. And so, the argument goes, a statutory shield will unnecessarily intrude on legitimate law enforcement objectives without delivering any countervailing benefits to members of the press or the public informed by their work.

Setting aside for a moment the details of the proposed law, consider Mukasey's threshold argument: that the press has functioned fine without a statutory shield so why enact one now?  History is certainly rich with confidential informants who've accepted the risk of of possible disclosure, but I think Mukasey overstates the case.  Whatever enticed confidential informants to come forward in the past, can we really say that the press, and through it the public at large, wouldn't benefit from added protection?

In Branzburg v. Hayes, the Supreme Court declined to grant the press an unqualified right of confidentiality under the First Amendment.  But the press still flourished, as did the use of confidential informants, in part because the decision left room for recognizing a qualified privilege on a case by case basis that takes into account the risks and benefits present in each independent circumstance. Indeed, most jurisdictions follow this approach, but the standards vary, and what is protected in one jurisdiction may not be protected in another. A federal shield statute would at least bring some consistency in the law that in turn may encourage otherwise wary informants to come forward with valuable information the public would want to know.

Moreover, its true that Pentagon, Watergate and Enron insiders were willing to talk without guaranteed protection, as were informants who leaked the Bush Administration's domestic spying, torture and rendition programs - matters Mukasey neglects to mention in his op-ed. But could we ever quantify (or qualify) how many episodes of government or corporate wrongdoing have yet to be discovered because those in the know are unwilling to talk without adequate protection?  To borrow the words of another Administration insider, there are things "we don't know we don't know."  And its likely to remain that way until a federal shield becomes law.

Mukasey's additional concern that the Free Flow of Information Act would undermine legitimate law enforcement investigations also deserves a closer look.  More on that tomorrow . . .

-Kathleen A. Bergin

Only In Berserkely: Boalt Hall Changes Name; Total Dummy Joins Faculty

Eric Muller has all the news.   

It's absolutely true.

Download the incriminating evidence

Istanbul Legal Skills Conference

Still looking for a summer conference - try this one: 

The Istanbul Legal Skills Conference sponsored by the Legal Writing Institute and hosted by Bahcesehir University's Institute for Global Understanding in Law will bring together professors from the United States and European Union to discuss legal analysis and writing skills with Turkish lawyers and law students.  Bahcesehir is a leading law school in Turkey and offers regular programs to Turkish lawyers that expose them to trends in law and legal education around the world.  The LWI is the second-largest American organization of law professors, with members in 48 countries.  It has offered programs to law professors, judges, and lawyers in the United States, London, Prague, and Nairobi.

The conference site contains the schedule of presenters and registration information for both the conference and a pre-conference excursion to Pergamon and Ephesus.  Or feel free to contact either me or Tracy McGaugh (Touro) personally.  We've both taught and lectured in Istanbul on a number of occasions, and are happy for any excuse to share our experiences there!

-Kathleen A. Bergin

Baldus Redux - Race and the Death Penalty, Again

A  new study to be published in the Houston Law Review this fall purports to provide statistical backing to what many in the criminal justice system would say is a no-brainer: race matters, especially when we're talking about who is sentenced to death.  As the New York Times reports this morning, the study surveyed cases in Harris County, Texas between 1992 and 1999 where its author, Professor Scott Phillips, found that for every 100 black and 100 white defendants, an average of 12 white defendants would be sentenced to death, compared with 17 black defendants.  Critics say the study is flawed in part because it "controls for stuff" other than race (which, um, I thought was the point?), but its findings shed new light on existing defects in a system that itself seems flawed at every pass. 

Here are a few more nuggets of information from Amnesty International about the death penalty in Harris County that give some context to the new study:

• If Harris County were a state, it would rank 26th in population but second in rates of execution (behind Texas itself).

• As of July 2007, Harris County had executed or sentenced to death the same number of defendants as had the next seven largest counties, those that include cities like Austin, Dallas, El Paso, Fort Worth, and San Antonio.

• Five million more people live in those seven counties than live in Harris County, and a hundred more murders are committed in those counties each year.  And yet, Harris County alone challenges their combined execution rate. 

Its been  more than 30 years since the SCT upheld the death penalty in McCleskey v. Kemp against overwhelming evidence that connected the likelihood of death to the victim's race.   Professor Phillips makes that same connection with the defendant's race.   Its doubtful these new findings would cause the present Court to seriously reconsider the merits of the death penalty, but its worth keeping in mind Justice Powell's admission upon retirement when asked whether in a given case he wished he could go back and change his vote.  Just one, he said, McCleskey.

-Kathleen A. Bergin

Part Time Work in the Legal Academy

Over at Crooked Timber, they're talking about academics who choose (often for family reasons) to work part time.   Lots of reasons why one might want that.  A lot has to do with having more time to spend with families.  Sometimes, also, graduate students will work part time (to put bread on the table and self-fund their research).   And they're talking about the pros and cons of this, particularly its implications for research.  As Ingrid Robeyns says:

But my biggest doubt whether part-time work is such a splendid idea for academics who are doing research has to do with the nature of research: whether one works on a full-time contract or a part-time contract, the literature that one has to follow to keep up to date with one’s area of research remains the same. There are ‘fixed costs’ (in terms of time and effort) for each line of research that one pursues. The consequence is that a part-timer spends as much time (in absolute number of hours) on keeping up to date with the literature, implying that she has fewer hours left for actually developing new research.

I suspect that use of part time academics, like increasing use of adjuncts and non-tenure track faculty, is another strategy of cost-cutting and benefit reduction that we're seeing throughout the economy.  The academy's being transformed (for good and bad) just as the rest of our economy.   As schools, understandably, look for ways to cut costs, use of part-time faculty is going to be yet another popular response.  This is a topic on which I hope to spend a lot of time talking this summer.

Alfred Brophy

A Gift For The Husband Who Has Everything: Daily Sex (For A Year)

Like Kathy, I like to troll newspapers from around the country and find out what's news.  Normally, I focus on things related to law.  But sometimes you can't ignore a great story - even when there really is no legal angle.  So look what I found in the Charlotte Observer: Charla Muller, a Charlotte "wife, mother and public relations professional"  wanted to give her husband a 40th birthday present "so fabulous, over the top, something so special 'that my husband would never have to pause and say, What did Charla give me for my 40th birthday?'” 

Naturally, she gave him 365 consecutive nights of sex (give or a take a few.)   She was nervous about the gift.  According to the Observer, Muller wondered: "if this gift could turn into 'a mistake that ranked up there with my mustache-bleaching incident.'"   

And Brad, the husband, apparently wasn't so hot on the idea at first.  Ultimately, they decided to try it. (Perhaps he was worried about the time commitment.  Never fear: the ever-frugal Charla explains that "quickies often are preferred if you’re doing this daily.”)  Like any good public relations professional,  Muller then spun the tale into a book  - 365 Nights: A Memoir of Intimacy (out this summer from Berkley Books and only temporarily ranked around 416,000th on Amazon).

How did the present work out?   I suppose the Mullers' picture is worth a thousand words. My money says this woman is soon going to be all over the TV talk show circuit.  Sometimes she'll be the featured guest; other times she'll just be part of the opening monologue. 

Brad will never forget Charla's magical birthday gift.  And soon, neither will America.

More Thoughts on Crawford

Critics of the Court's opinion in Crawford are likely to assert that the Court turned a blind eye to the actual purposes of the voter ID law, which they claim is to deter people who lack photo ID from voting.  Those people are disproportionately elderly and poor, the critics say, and they are likely to vote Democratic, so the whole thing is a partisan effort to disenfranchise a bloc of Democratic voters.  The fact that there have not been any proven instances of voter impersonation in Indiana lends weight to this charge, argue the critics. 

This criticism is founded on the assumption that the Court should ignore facially legitimate reasons for such a law, and instead impute malignant intent to the Indiana legislature.  Alternatively, the critics will argue that the law should be voided because of its effects.  If effects are to be the measure, a ruling of facial invalidity is surely error, because there is not yet any proof of its effects.  And If purpose is to be the measure, the critics argue, in essence, for a reversal of the principle articulated in O'Brien and elsewhere that a law that is otherwise constitutionally valid will not be struck down simply because there is a forbidden purpose behind its enactment.  There are, of course, exceptions to this principle, particularly when it comes to Establishment Clause cases (think of Edwards v. Aguillard or Wallace v. Jaffree, or McCreary County), but they are exceptions.  Crawford's critics will need to articulate why that exception ought to apply here. 

Disclaimer:  I have written on the entire topic of when purpose or effects should be the touchstone of constitutional validity (59 S. Car. L. Rev. 1 (2007)), so I have an axe to grind.

Thoughts on Crawford: Voter ID

In Crawford v. Marion County Election Board the Supreme Court has upheld Indiana's voter ID law, in a splintered set  of opinions with no majority opinion. I have only scanned the opinions but it appears that the Stevens opinion (joined by CJ Roberts and Kennedy) applies the balancing test of Anderson v. Celebrezze in a very deferential fashion: So long as the state has plausible concerns to impose the regulation (even if those conerns are largely unsupported by the evidence) the Anderson  test is satisfied.  Justice Scalia, joined by Thomas and Alito, think that Burdick should apply: So long as the regulation imposes a non-severe and non-discriminatory burden on voting, deference to state concerns should govern.  Under Marks the Stevens opinion appears to be the guiding precedent.  Justice Souter, joined by Ginsburg, dissented because the state's concerns were not adeqautely supported by the evidence.  Breyer dissented separately in a characteristically ad hoc approach:  Some of the regulations were too severe.  The judgment leaves open as-applied challenges to the law. 

Despite claims that the Indiana statute is a partisan measure to depress voting by groups likely to vote Democratic, I continue to have a hard time understanding what is so constitutionally infirm about ensuring that persons casting ballots are who they claim to be. You can't shift your own money from one bank account to another without doing so.  Isn't voting at least as precious? 

UPDATE: Kathleen Bergin beat me to the posting, but as readers can see, we apparently disagree on the case.

SCT Upholds Indiana Voter ID Law

In a 6-3 decision released this morning the Supreme Court upheld an Indiana law that requires voters to produce a photo id in order to cast a ballot.  Its not an easy decision to digest.  Justice Stevens authored the lead opinion, joined by CJ Roberts and Justice Kennedy.  Justices Thomas and Alito joined Scalia's concurrence.  Souter, Ginsburg and Breyer were in dissent. 

Couple points to note, however.  Civil rights groups had lined up with Democrats to oppose the Republican inspired measure on the ground that the burdens imposed will discourage poor, elderly and minority voters from participating in the political process - all without delivering any counterbalancing benefits to the state.  One of the primary motivations behind the law is the asserted need to deter in-person voter misidentification.  The problem is, as pointed out by Justice Souter, not a single instance of this type of voter fraud has been recorded in the history of Indiana elections.  Ever.  But real problems, such as absentee-voter fraud, duplicate registrations, and the like, go unremedied.   

The decision leaves room for future "as applied" challenges - an increasingly favorite strategy for disposing of controversial cases - but those challenges are difficult to win, and certainly don't leave much promise for the tens of thousands of Indiana voters who are now disenfranchised, just in time for the state's May 6 primary.   

Access Crawford v. Marion County Election Board here.  More from Rick Hasen, (Loyola Los Angeles) who authored an amicus brief in support of the challengers, at Election Law Blog.

-Kathleen A. Bergin

The Morality of Doing Research Using Proslavery Treatises

This is a problem you don't face everyday.  I'm in the midst of a short paper on the University of Mississippi's trial of its Chancellor (incidentally F.A.P. Barnard, the namesake of Columbia University's Barnard College) for taking testimony of a slave against a student.   Really fascinating stuff, because we usually think about trials as about truth, but there was great concern about taking the testimony of enslaved people against whites. 

There's a lot that needs to be said about this topic.  Right now, though, I'm interested in knowing about the key cases from southern courts.  So I have the question: should I use T.R.R. Cobb's treatise on slave law?  Cobb was a pretty important person in the old South: he edited the Georgia Code, taught for a while at the University of Georgia, and published a comprehensive treatise on slave law.  (He occupies a key place in my current book project, University, Court, and Slave.)  Now, I've used the treatise a bunch as evidence of thought at the time.  But now I have a different purpose in mind: to use it as a source of cases.  There is something that I find more than a little disturbing about "communicating" with General Cobb (he died fighting at Fredericksburg) in this way.  For this is not just reading his work to understand his mind, but reading his work to learn about what the law actually was.

I guess that's how the progress of knowledge works, though--we use the literature of those before us.

Alfred Brophy

Can Psychological Injuries Ever Justify Execution?

During the  recent Supreme Court argument in Louisiana v. Kennedy (the case considering the constitutionality of capital punishment for child rapists), counsel for the state detailed the  serious injuries suffered by the 8 year old rape victim  - including some that required surgical intervention.  At the end of a graphic account of this damage, Justice Stevens asked if the injuries were permanent and counsel for the state said they were not.  Counsel then stated that the rape inflicted (presumably permanent) psychological injuries on the victim.  It thus seems that, to the degree that the human harm must be proportionate to the sanction, Louisiana believes serious, but relatively short-term, injury, paired with permanent psychological injuries, is sufficient to render death constiutional.

Nobody should diminish the awfulness of this crime, the pain and fear the victim felt at the time of the incident, and the psychic scars that it surely left.  But since the return of the death penalty, we have not executed a single person who did not actually kill someone. If the Court considers the death penalty suitable under the circumstances in Kennedy, it seems that the sanction could be legally imposed for scores of offenses - everything ranging from arson, to assault, to attempted murder, and probably others.  An unarmed street assault, for example, may cause the victim pain, injuries, and long term psychological harm.  

Maybe cases with child victims are different.  As I've previously written here and here, the parties tried to stoke broad anxiety over child safety in their briefs.  But it's awful hard to figure out a principled basis to say that assaults/rapes/arson victimizing 17 year olds are inherently worse than those crimes, when perpetrated against 18 year olds.  That's not to say the Court might not draw that line; they did it in reverse when they outlawed death for child offenders in Roper v. Simmons.  And I suppose, just as Louisiana tried to turn the arguments about shifting national consensuses on those who first offered them, supporters of death-for-rape might make the same point about age: the line may be irrational, but it's how we've decided to analyze these matters.

At the end of the day, it seems to me that the Court is either going to maintain the prohibition on executing rapists, or the entire death penalty doctrinal regime - everything post Furman - may be on its way out.  That doesn't mean that the death penalty will necessarily spread to every violent or dangerous offense; each legislature will make its own decisions.  Perhaps allowing legislatures freer reign will cause a broad public debate and ultimately lead citizens to revisit their apparent taste for capital punishment.   But I'm a skeptic.  As we've learned again and again, no legislator ever lost her job by voting for tougher criminal sanctions.

The 2008 Law Faculty Lateral Moves List

Updated as of April 27 and moved to the top.   Other related posts include current dean searches and 2008-09 visitors.  A slightly outdated list of laterals, by school of departure, is here.

I'ved noted the newest changes in red.  If you have entry level hiring news, make sure to alert Larry Solum.  His request for information, a particular format, is here.  As always, thanks to all my fellow bloggers - including Brian Leiter, Paul Caron, and Paul Secunda, among others - who have provided substantial portions of this data.  Please alert me to any other changes, misses or mistakes.

It strikes me that it's time to start organizing this year's law faculty lateral moves list.  Paul Secunda's great series of posts at Co-op (here, here, here, here, and here) inspired me to get the list posted.  As always, I rely on others to provide information for me to share.  Many thanks to Brian Leiter et al for their efforts putting some of this information into the blogosphere.  Inevitably this initial list will be radically incomplete - and perhaps contain errors.  I apologize in advance.    Please email me at danielmfiller@gmail.com with any additional info. 

Alabama

Ron Krotoszynski from Washington & Lee.

Heather Elliott from Catholic.

American

Robert Tsai from Oregon.

Arizona

Kevin Washburn from Minnesota.

Arizona State

J.J. Koehler from Texas (business school).

Betting Markets Tilt Toward Hillary. Compared To Gore, That Is.

Over at Intrade, it appears that bettors - or shall we say, investors - think that Obama is about five times more likely than Hillary to get the nomination - at roughly 1:4 odds.  Hillary is operating at something barely better than 5:1.  And Gore's odds of winning the Democratic nomination are about 24:1 - about 1/5th the chance of Hillary. 

That' not so bad for a guy who's not running for President. 

Are Law Professors Giving Senator Obama a Bad Name?

This morning I've been listening to Fox's interview with Senator Obama.  Dig this from Chris Wallace (transcript here):

WALLACE:  But some observers, and some liberal observers say is that part of your problem is you come off as a former law professor who talks about transforming politics when the lunch bucket crowd really wants to know what you’re going to do for them.  Bob Herbert, columnist for the “New York Times”, [who] happens to be a black man, says that Hillary Clinton seems tougher than you do.

How about that!  Makes me want to look into some more on public attitudes towards law professors.  And, perhaps even more importantly, do we spend a lot of time talking about transformative politics?  Not the law professors I know--though every once in a while, at the end of a book, some of us talk about the future (and even think it's one in which race plays a smaller role than it does today).

Alfred Brophy

Genetic Surveillance: Crime Scene DNA Used To Hunt Down Offenders' Relatives

The LA Times reports today a story that reflects more of this "policing über alles" mentality I discussed in my last post.  It seems that previously liberal California Attorney General Jerry Brown now plans to sample DNA at crime scenes and, using "partial match" technology, find felons in the state's burgeoning DNA database who are related to the apparent offender.  Police will then target these relatives for interrogation.

For now, the public will feel reassured that the comparison set is exclusively felons.  But how long will that last?  Testing and disclosure of DNA is becoming much more commonplace - for transplant databases, among other things.  At some point, states may seek access to these data sets.  And how long will it be before the government collects DNA for use as the definitive identifier - for passports and drivers licenses, perhaps? 

Before the 1960's, the U.S. had comparatively lax protection for individual privacy but police had relatively limited capacities to invade it.  In the 1960's and 1970's, we reconsidered these policies, and adopted a more protective approach to the Fouth Amendment. Now, however, as the Warren Court legacy recedes into deep history and protections for privacy similarly fade, we discover that government has new tricks and technology up its sleeve.  Here are just three: implantable subcutaenous human tracking devices, thermal imaging heat emission searches, and DNA database searches. For now, the use of some of these technologies is legally constrained.  But we cannot assume the permanence of those protections.   Certainly not with Governor Moonbeam playing police chief.