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Full-Text Articles in Law
Regulating Social Media Through Family Law, Katharine B. Silbaugh, Adi Caplan-Bricker
Regulating Social Media Through Family Law, Katharine B. Silbaugh, Adi Caplan-Bricker
Faculty Scholarship
Social media afflicts minors with depression, anxiety, sleeplessness, addiction, suicidality, and eating disorders. States are legislating at a breakneck pace to protect children. Courts strike down every attempt to intervene on First Amendment grounds. This Article clears a path through this stalemate by leveraging two underappreciated frameworks: the latent regulatory power of parental authority arising out of family law, and a hidden family law within First Amendment jurisprudence. These two projects yield novel insights. First, the recent cases offer a dangerous understanding of the First Amendment, one that should not survive the family law reasoning we provide. First Amendment jurisprudence …
The Automated Fourth Amendment, Maneka Sinha
The Automated Fourth Amendment, Maneka Sinha
Faculty Scholarship
Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible. Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …
Why Courts Fail To Protect Privacy: Race, Age, Bias, And Technology, Christopher Robertson, Bernard Chao, Ian Farrell, Catherine Durso
Why Courts Fail To Protect Privacy: Race, Age, Bias, And Technology, Christopher Robertson, Bernard Chao, Ian Farrell, Catherine Durso
Faculty Scholarship
The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question is supposed to depend on and reflect the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct? If …
Are Privacy Laws Deficient?, Woodrow Hartzog
Are Privacy Laws Deficient?, Woodrow Hartzog
Faculty Scholarship
Privacy law around the world is deficient because it ignores design. Lawmakers have attempted to establish limits on the collection, use, and distribution of personal information. But they have largely overlooked the power of design. They have discounted the role that design plays in facilitating the conduct and harm privacy law is meant to prevent. Design pitches and picks privacy winners and losers, with people as data subjects and surveillance objects often on the losing side.
Picturing Moral Arguments In A Fraught Legal Arena: Fetuses, Photographic Phantoms And Ultrasounds, Jessica Silbey
Picturing Moral Arguments In A Fraught Legal Arena: Fetuses, Photographic Phantoms And Ultrasounds, Jessica Silbey
Faculty Scholarship
This article investigates the movement in the U.S. that seeks to regulate the abortion decision by mandating ultrasounds prior to the procedure. The article argues that this reform effort is misguided not only because it is ineffective, but also because ultrasounds provide misleading information and are part of shaming practices that degrade the dignity of women. Both of these problems violate the main tenets of Planned Parenthood of Southern Pennsylvania v. Casey (1992). Central to the article’s argument and novelty is that the pro-ultrasound movement’s mistake is both legal and cultural. It misunderstands the nature of visual technology by failing …
A Shattered Looking Glass: The Pitfalls And Potential Of The Mosaic Theory Of Fourth Amendment Privacy, David C. Gray, Danielle Keats Citron
A Shattered Looking Glass: The Pitfalls And Potential Of The Mosaic Theory Of Fourth Amendment Privacy, David C. Gray, Danielle Keats Citron
Faculty Scholarship
On January 23, 2012, the Supreme Court issued a landmark non-decision in United States v. Jones. In that case, officers used a GPS-enabled device to track a suspect’s public movements for four weeks, amassing a considerable amount of data in the process. Although ultimately resolved on narrow grounds, five Justices joined concurring opinions in Jones expressing sympathy for some version of the “mosaic theory” of Fourth Amendment privacy. This theory holds that we maintain reasonable expectations of privacy in certain quantities of information even if we do not have such expectations in the constituent parts. This Article examines and …
Commentary, Critical Legal Theory In Intellectual Property And Information Law Scholarship, Cardozo Arts & Entertainment Law Journal Spring Symposium, Sonia K. Katyal, Peter Goodrich
Commentary, Critical Legal Theory In Intellectual Property And Information Law Scholarship, Cardozo Arts & Entertainment Law Journal Spring Symposium, Sonia K. Katyal, Peter Goodrich
Faculty Scholarship
The very definition and scope of CLS (critical legal studies) is itself subject to debate. Some scholars characterize CLS as scholarship that employs a particular methodology—more of a “means” than an “end.” On the other hand, some scholars contend that CLS scholarship demonstrates a collective commitment to a political end goal—an emancipation of sorts —through the identification of, and resistance to, exploitative power structures that are reinforced through law and legal institutions. After a brief golden age, CLS scholarship was infamously marginalized in legal academia and its sub-disciplines. But CLS themes now appear to be making a resurgence—at least in …
Second Class For The Second Time: How The Commercial Speech Doctrine Stigmatizes Commercial Use Of Aggregated Public Records, Brian N. Larson, Genelle I. Belmas
Second Class For The Second Time: How The Commercial Speech Doctrine Stigmatizes Commercial Use Of Aggregated Public Records, Brian N. Larson, Genelle I. Belmas
Faculty Scholarship
This Article argues that access to aggregated electronic public records for commercial use should receive protection under the First Amendment in the same measure as the speech acts the access supports. In other words, we view commercial access to aggregated public records as an essential means to valuable speech. For many, however, the taint of the commercial speech doctrine is turning all “information flows” into commercial ones. This, in turn, is threatening the access to government records.