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Full-Text Articles in Law
Liberal Feminist Jurisprudence: Foundational, Enduring, Adaptive, Linda C. Mcclain, Brittany K. Hacker
Liberal Feminist Jurisprudence: Foundational, Enduring, Adaptive, Linda C. Mcclain, Brittany K. Hacker
Faculty Scholarship
Liberal feminism remains a significant strand of feminist jurisprudence in the U.S. Rooted in 19th and 20th century liberal and feminist political theory and women’s rights advocacy, it emphasizes autonomy, dignity, and equality. Liberal feminism’s focus remains to challenge unjust gender-based restrictions based on assumptions about men’s and women’s proper spheres and roles. Second wave liberal legal feminism, evident in Ruth Bader Ginsburg’s constitutional litigation, challenged pervasive sex-based discrimination in law and social institutions and shifted the Supreme Court’s interpretation of the Equal Protection Clause to a more skeptical review of gender-based classifications. Liberal feminists have developed robust conceptions of …
Navigating The Identity Thicket: Trademark's Lost Theory Of Personality, The Right Of Publicity, And Preemption, Jennifer E. Rothman
Navigating The Identity Thicket: Trademark's Lost Theory Of Personality, The Right Of Publicity, And Preemption, Jennifer E. Rothman
All Faculty Scholarship
Both trademark and unfair competition laws and state right of publicity laws protect against unauthorized uses of a person’s identity. Increasingly, however, these rights are working at odds with one another, and can point in different directions with regard to who controls a person’s name, likeness, and broader indicia of identity. This creates what I call an "identity thicket" of overlapping and conflicting rights over a person’s identity. Current jurisprudence provides little to no guidance on the most basic questions surrounding this thicket, such as what right to use a person’s identity, if any, flows from the transfer of marks …
Supreme Court Precedent And The Politics Of Repudiation, Robert L. Tsai
Supreme Court Precedent And The Politics Of Repudiation, Robert L. Tsai
Faculty Scholarship
This is an invited essay that will appear in a book titled "Law's Infamy," edited by Austin Sarat as part of the Amherst Series on Law, Jurisprudence, and Social Thought. Every legal order that aspires to be called just is held together by not only principles of justice but also archetypes of morally reprehensible outcomes, and villains as well as heroes. Chief Justice Roger Taney, who believed himself to be a hero solving the great moral question of slavery in the Dred Scott case, is today detested for trying to impose a racist, slaveholding vision of the Constitution upon America. …
Privative Copyright, Shyamkrishna Balganesh
Privative Copyright, Shyamkrishna Balganesh
All Faculty Scholarship
“Privative” copyright claims are infringement actions brought by authors for the unauthorized public dissemination of works that are private, unpublished, and revelatory of the author’s personal identity. Driven by considerations of authorial autonomy, dignity, and personality rather than monetary value, these claims are almost as old as Anglo-American copyright law itself. Yet modern thinking has attempted to undermine their place within copyright law and sought to move them into the domain of privacy law. This Article challenges the dominant view and argues that privative copyright claims form a legitimate part of the copyright landscape. It shows how privative copyright claims …
Criminal Employment Law, Benjamin Levin
Criminal Employment Law, Benjamin Levin
Publications
This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with …
Ancient Worries And Modern Fears: Different Roots And Common Effects Of U.S. And Eu Privacy Regulation, David Thaw, Pierluigi Perri
Ancient Worries And Modern Fears: Different Roots And Common Effects Of U.S. And Eu Privacy Regulation, David Thaw, Pierluigi Perri
Articles
Much legal and technical scholarship discusses the differing views of the United States and European Union toward privacy concepts and regulation. A substantial amount of effort in recent years, in both research and policy, focuses on attempting to reconcile these viewpoints searching for a common framework with a common level of protection for citizens from both sides of Atlantic. Reconciliation, we argue, misunderstands the nature of the challenge facing effective cross-border data flows. No such reconciliation can occur without abdication of some sovereign authority of nations, that would require the adoption of an international agreement with typical tools of international …
Human Rights Hero: The Supreme Court In Griswold V. Connecticut, Stephen Wermiel
Human Rights Hero: The Supreme Court In Griswold V. Connecticut, Stephen Wermiel
Articles in Law Reviews & Other Academic Journals
No abstract provided.
The Trickle-Down War, Rosa Brooks
The Trickle-Down War, Rosa Brooks
Georgetown Law Faculty Publications and Other Works
The history of the European nation-state, wrote political sociologist Charles Tilly, is inextricably bound up with the history of warfare. To oversimplify Tilly’s nuanced and complex arguments, the story goes something like this: As power-holders (originally bandits and local strongmen) sought to expand their power, they needed capital to pay for weapons, soldiers and supplies. The need for capital and new recruits drove the creation of taxation systems and census mechanisms, and the need for more effective systems of taxation and recruitment necessitated better roads, better communications and better record keeping. This in turn enabled the creation of larger and …
What Privacy Is For, Julie E. Cohen
What Privacy Is For, Julie E. Cohen
Georgetown Law Faculty Publications and Other Works
Privacy has an image problem. Over and over again, regardless of the forum in which it is debated, it is cast as old-fashioned at best and downright harmful at worst — anti-progressive, overly costly, and inimical to the welfare of the body politic. Yet the perception of privacy as antiquated and socially retrograde is wrong. It is the result of a conceptual inversion that relates to the way in which the purpose of privacy has been conceived. Like the broader tradition of liberal political theory within which it is situated, legal scholarship has conceptualized privacy as a form of protection …
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 …
Privacy Law: Positive Theory And Normative Practice, Anita L. Allen
Privacy Law: Positive Theory And Normative Practice, Anita L. Allen
All Faculty Scholarship
No abstract provided.
The Inalienable Right Of Publicity, Jennifer E. Rothman
The Inalienable Right Of Publicity, Jennifer E. Rothman
All Faculty Scholarship
This article challenges the conventional wisdom that the right of publicity is universally and uncontroversially alienable. Courts and scholars have routinely described the right as a freely transferable property right, akin to patents or copyrights. Despite such broad claims of unfettered alienability, courts have limited the transferability of publicity rights in a variety of instances. No one has developed a robust account of why such limits should exist or what their contours should be. This article remedies this omission and concludes that the right of publicity must have significantly limited alienability to protect the rights of individuals to control the …
Renegotiating The Social Contract, Jennifer S. Hendricks
Renegotiating The Social Contract, Jennifer S. Hendricks
Publications
This review of The Supportive State: Families, Government and America’s Political Ideals highlights Maxine Eichner’s important theoretical contributions to both liberal political theory and feminist theory, applauding her success in reforming liberalism to account for dependency, vulnerability, and families. The review then considers some implications of Eichner’s proposals and their likely reception among feminists. It concludes that The Supportive State is a sound and inspiring response to recent calls that feminist theory move from being strictly a school of criticism to developing a theory of governance.
Bringing Clarity To Administrative Search Doctrine: Distinguishing Dragnets From Special Subpopulation Searches, Eve Brensike Primus
Bringing Clarity To Administrative Search Doctrine: Distinguishing Dragnets From Special Subpopulation Searches, Eve Brensike Primus
Articles
Anyone who has been stopped at a sobriety checkpoint, screened at an international border, scanned by a metal detector at an airport or government building, or drug tested for public employment has been subjected to an administrative search or seizure. Searches of public school students, government employees, and probationers are characterized as administrative, as are business inspections and-increasingly-wiretaps and other searches used in the gathering of national security intelligence. In other words, the government conducts thousands of administrative searches every day. None of these searches requires either probable cause or a search warrant. Instead, courts evaluating administrative searches need only …
Judicial Activism And Fourteenth Amendment Privacy Claims: The Allure Of Originalism And The Unappreciated Promise Of Constrained Nonoriginalism, Daniel O. Conkle
Judicial Activism And Fourteenth Amendment Privacy Claims: The Allure Of Originalism And The Unappreciated Promise Of Constrained Nonoriginalism, Daniel O. Conkle
Articles by Maurer Faculty
Among other meanings, "judicial activism" can be defined as judicial decisionmaking that frustrates majoritarian self-government and that is unconstrained by law. So understood, judicial activism is presumptively problematic, because it frustrates customary democratic and judicial norms.
In this essay, I address originalist and nonoriginalist responses to the presumptive problem of judicial activism in the context of Fourteenth Amendment privacy claims, including claims relating to abortion, sexual conduct, and same-sex marriage. I argue that originalism is an overrated solution, largely because current understandings of originalism, despite claims to the contrary, do not provide standards of decision that are sufficiently clear to …
Privacy And Funeral Protests, Christina E. Wells
Privacy And Funeral Protests, Christina E. Wells
Faculty Publications
This article examines the free speech implications of funeral protest statutes. Enacted in response to the Westboro Baptist Church, whose members protest at funerals to spread their antigay message, such statutes restrict a broad array of peaceful expressive activity. This Article focuses on the states’ interest underlying these statutes - protecting mourners’ right to be free from unwanted intrusions while at funeral services. Few would argue against protecting funeral services from intrusive protests. These statutes, however, go far beyond that notion and protect mourners from offensive, rather than intrusive, protests. As such, they do not conceive of privacy as protection …
Dredging Up The Past: Lifelogging, Memory And Surveillance, Anita L. Allen
Dredging Up The Past: Lifelogging, Memory And Surveillance, Anita L. Allen
All Faculty Scholarship
The term “lifelog” refers to a comprehensive archive of an individual's quotidian existence, created with the help of pervasive computing technologies. Lifelog technologies would record and store everyday conversations, actions, and experiences of their users, enabling future replay and aiding remembrance. Products to assist lifelogging are already on the market; but the technology that will enable people fully and continuously to document their entire lives is still in the research and development phase. For generals, edgy artists and sentimental grandmothers alike, lifelogging could someday replace or complement, existing memory preservation practices. Like a traditional diary, journal or day-book, the lifelog …
The Virtuous Spy: Privacy As An Ethical Limit, Anita L. Allen
The Virtuous Spy: Privacy As An Ethical Limit, Anita L. Allen
All Faculty Scholarship
Is there any reason not to spy on other people as necessary to get the facts straight, especially if you can put the facts you uncover to good use? To “spy” is secretly to monitor or investigate another's beliefs, intentions, actions, omissions, or capacities, especially as revealed in otherwise concealed or confidential conduct, communications and documents. By definition, spying involves secret, covert activity, though not necessarily lies, fraud or dishonesty. Nor does spying necessarily involve the use of special equipment, such as a tape recorder or high-powered binoculars. Use of a third party agent, such as a “private eye” or …
Structural Rights In Privacy, Harry Surden
Structural Rights In Privacy, Harry Surden
Publications
This Essay challenges the view that privacy interests are protected primarily by law. Based upon the understanding that society relies upon nonlegal devices such as markets, norms, and structure to regulate human behavior, this Essay calls attention to a class of regulatory devices known as latent structural constraints and provides a positive account of their role in regulating privacy. Structural constraints are physical or technological barriers which regulate conduct; they can be either explicit or latent. An example of an explicit structural constraint is a fence which is designed to prevent entry onto real property, thereby effectively enforcing property rights. …
Six Opinions By Mr. Justice Stevens: A New Methodology For Constitutional Cases?, Robert F. Nagel
Six Opinions By Mr. Justice Stevens: A New Methodology For Constitutional Cases?, Robert F. Nagel
Publications
No abstract provided.
Equality Theory, Marital Rape, And The Promise Of The Fourteenth Amendment, Robin West
Equality Theory, Marital Rape, And The Promise Of The Fourteenth Amendment, Robin West
Georgetown Law Faculty Publications and Other Works
During the 1980s a handful of state judges either held or opined in dicta what must be incontrovertible to the feminist community, as well as to most progressive legal advocates and academics: the so-called marital rape exemption, whether statutory or common law in origin, constitutes a denial of a married woman's constitutional right to equal protection under the law. Indeed, a more obvious denial of equal protection is difficult to imagine: the marital rape exemption denies married women protection against violent crime solely on the basis of gender and marital status. What possibly could be less rational than a statute …