Law Commons^™

Recovering The Original Fourth Amendment, Thomas Y. Davies

Michigan Law Review

Claims regarding the original or intended meaning of constitutional texts are commonplace in constitutional argument and analysis. All such claims are subject to an implicit validity criterion - only historically authentic assertions should matter. The rub is that the original meaning commonly attributed to a constitutional text may not be authentic. The historical Fourth Amendment is a case in point. If American judges, lawyers, or law teachers were asked what the Framers intended when they adopted the Fourth Amendment, they would likely answer that the Framers intended that all searches and seizures conducted by government officers must be reasonable given …

Privacy And Democracy In Cyberspace, Paul M. Schwartz

Vanderbilt Law Review

In this Article, Professor Schwartz depicts the widespread, silent collection of personal information in cyberspace. At present, it is impossible to know the fate of the personal data that one generates online. Professor Schwartz argues that this state of affairs degrades the health of a deliberative democracy; it cloaks in dark uncertainty the transmutation of Internet activity into personal information that will follow one into other areas and discourage civic participation. This situation also will have a negative impact on individual self- determination by deterring individuals from engaging in the necessary thinking out loud and deliberation with others upon which …

Genetic Privacy: There Ought To Be A Law, George J. Annas

Faculty Scholarship

If you don't believe in privacy, you probably don't believe in genetic privacy. I believe in privacy, including the constitutional right of privacy. But my interest is not to persuade you to believe in privacy, but rather to expose the major issues involved in genetic privacy. What makes genetic information different from other sensitive medical information? Are we getting carried away? Are we just treating DNA-based information differently because it is new?

Protecting Privacy On The Front Page: Why Restrictions On Commercial Use Of Law Enforcement Records Violate The First Amendment, Jason L. Cagle

Vanderbilt Law Review

An individual is involved in an automobile accident and is arrested for driving under the influence. A few days after being re- leased, he receives several letters in the mail. One is from a chiropractor offering services to treat his injuries. Another is from an alcohol abuse treatment center. Yet another is from an attorney who defends traffic offenses. Each of the solicitors obtained the individual's name and address from publicly available records concerning the incident. The letters are truthful and not misleading, but utilize publicly available information for purely commercial purposes at the expense of the individual's privacy.

Several …

Privacy In Genetics Research, Barbara Fuller, Mary Jo Ellis Kahn, P. A. Barr, L. Biesecker, E. Crowley, J. Garber, M. K. Mansoura, Patricia Murphy, J. Murray, J. Phillips, Karen H. Rothenberg, Mark Rothstein, J. Stopfer, Gary Swergold, B. Weber, Francis Collins, Kathy Hudson

Faculty Scholarship

No abstract provided.

Building A Community Through Workplace E-Mail: The New Privacy Frontier, Peter Schnaitman

Michigan Telecommunications & Technology Law Review

The relatively new technology of electronic mail (e-mail) presents an entirely new issue of workplace privacy. Currently, whether a person has a privacy interest in their workplace e-mail communications is as unsettled an issue as it has been since the technology emerged in the early part of this decade as the preferred mode of communication in the workplace. Indeed, e-mail may soon be the preferred mode of communication in general. This comment will argue that all e-mail users have a privacy interest in workplace e-mail communications and that the current law does not afford e-mail users any type of protection …

Current Issues Regarding The Americans With Disabilities Act, John-Paul Motley

Vanderbilt Law Review

President George Bush, noting that "statistics consistently demonstrate that disabled people are the poorest, least educated, and largest minority in America," signed the Americans with Disabilities Act ("ADA") into law in 1990. The ADA prohibits private employers from discriminating against a "qualified individual with a disability" in employment decisions. The Act defines a disability in one of three ways: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) being regarded by others as having such an impairment. The ADA also prohibits employers from inquiring into …

Rules, Responsibility And Commitment To Children: The New Language Of Morality In Family Law, Jane C. Murphy

All Faculty Scholarship

Part One of this Article explores the meaning of morality by briefly reviewing a variety of attempts to explore the meaning of moral conduct. This Section draws on a variety of contemporary moral philosophers who have built on the classical tradition to develop a broader definition of moral behavior. This discussion provides a context for the current debate about the meaning of morality in family law and moral discourse in the no-fault era. Part One also reviews the historical debate about how law should strike a balance between promoting communitarian values and respecting autonomy and individual rights. The Article argues …

Women And The Internet, Carlin Meyer

Articles & Chapters

No abstract provided.

Anti-Paparazzi Legislation, Rebecca Roiphe

Articles & Chapters

No abstract provided.

The Professional Athlete's Right Of Publicity, Laura Lee Stapleton, Matt Mcmurphy

Marquette Sports Law Review

No abstract provided.

Book Preface, Hendrik Hartog, Thomas A. Green

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

At her death in December 1997, Betsy Clark had been working for more than a dozen years on a study tentatively entitled "Women, Church and State: Religion and the Culture of Individual Rights in Nineteenth-Century America." Between 1987 and 1995, several of the planned chapters had appeared in law reviews and in history journals. Another chapter had been written and revised before and during the first stages of her illness. Two chapters can be found in preliminary form in her 1989 Princeton dissertation and had been presented to a colloquium at Harvard Law School. But other chapters planned for the …

Genetic Monitoring In The Workplace: A Tool Not A Solution, Lillian Trettin, Catherine Musham, Richard Jablonski

RISK: Health, Safety & Environment (1990-2002)

The authors differentiate between genetic monitoring and screening, and discuss the potential risks and benefits of predictive testing technologies.

Bringing Dignity Back To Light: Publicity Rights And The Eclipse Of The Tort Of Appropriation Of Identity, Jonathan Kahn

Faculty Scholarship

Over the years, the privacy-based tort of appropriation has become eclipsed by its flashier cousin, publicity. Such is perhaps to be expected in a world where seemingly everything has been turned into a saleable commodity. When celebrities are perpetually trading on their names and images in the open market, it may seem quaint, at best, to invoke a dignity as a basis for protecting personal identity. But this is exactly what happens. In case after case, even as they demand restitution for the converted monetary value of their names and images, celebrities also invoke dignitary concerns as a prime motivation …

Review Of The Repeal Of Reticence: A History Of America's Cultural And Legal Struggles Over Free Speech, Obscenity, Sexual Liberation, And Modern Art, Donald J. Herzog

Reviews

Our public sphere, which should have displayed and preserved the grandeur and beauty of our civic ideals and moral excellences, is instead inane and vacuous when it is not utterly mean, ugly, or indecent (p. 4). Troubled by the tawdry nonsense circulating in the public sphere-and she wrote before learned enquiries into whether the President's genitals had any distinguishing characteristics- Rochelle Gurstein turns to history to understand how we arrived at such a sorry destination. Hers is a tale of decline: The Victorians "we moderns" so routinelyd eridef or theirP uritanicalr epressivenessu nderstoodf ull well that certain things have to …

The Changing Face Of Privacy Protection In The European Union And The United States, Fred H. Cate

Articles by Maurer Faculty

Among the wide variety of national and multinational legal regimes for protecting privacy, two dominant models have emerged, reflecting two very different approaches to the control of information. The European Union has enacted a sweeping data protection directive that imposes significant restrictions on most data collection, processing, dissemination, and storage activities, not only within Europe, but throughout the world if the data originates in a member state. The United States has taken a very different approach that extensively regulates government processing of data, while facilitating private, market-based initiatives to address private sector data processing.

Under the EU data protection directive, …

Restoring Americans' Privacy In Electronic Commerce Symposium - The Legal And Policy Framework For Global Electronic Commerce: A Progress Report, Joel R. Reidenberg

Faculty Scholarship

In the United States today, substance abusers have greater privacy than web users and privacy has become the critical issue for the development of electronic commerce. Yet, the U.S. government’s privacy policy relies on industry self-regulation rather than legal rights. This article argues that the theory of self-regulation has normative flaws and that public experience shows the failure of industry to implement fair information practices. Together the flawed theory and data scandals demonstrate the sophistry of U.S. policy. The article then examines the comprehensive legal rights approach to data protection that has been adopted by governments around the world, most …

The Architecture Of Privacy: Remaking Privacy In Cyberspace, Lawrence Lessig

Vanderbilt Journal of Entertainment & Technology Law

This is an essay about privacy. My aim is to understand privacy through these two very different ideas. Privacy, in the sense that I mean here, can be described by these two different ideas. It stands in competition with these ideas. It is that part of life that is left after one subtracts, as it were, the monitored and the searchable. A life where less is monitored is a life where more is private; and life where less can (legally or technologically) be searched is also a life where more is private. By understanding the technologies of these two different …

Filling The Black Hole Of Cyberspace: Legal Protections For Online Privacy, R. Craig Tolliver

Vanderbilt Journal of Entertainment & Technology Law

The Internet is a unique and wholly new medium of worldwide human communication. This pronouncement of the United States Supreme Court echoes what most of the American population has known for some time. The emergence of cyberspace has dramatically changed the nature of electronic communications, and consumers are conducting online transactions at a tremendous pace. While this revolution has obviously increased the amount and types of information available to American consumers, it has also achieved a different result: businesses now have access to an unprecedented amount of personal information. In turn, there exists a danger that this information will be …

Resolving Conflicting International Data Privacy Rules In Cyberspace, Joel R. Reidenberg

Faculty Scholarship

While core principles for the fair treatment of personal information are common to democracies, privacy rights vary considerably across national borders. This article explores the divergences in approach and substance of data privacy between Europe and the United States. It argues that the specific privacy rules adopted in a country have a governance function. The article shows that national differences support two distinct political choices for the roles in democratic society assigned to the state, the market and the individual: either liberal, market-based governance or socially-protective, rights-based governance. These structural divergences make international cooperation imperative for effective data protection in …

Prying, Spying, And Lying: Intrusive Newsgathering And What The Law Should Do About It, Lyrissa Barnett Lidsky

UF Law Faculty Publications

The media's use of intrusive newsgathering techniques poses an increasing threat to individual privacy. Courts currently resolve the overwhelming majority of conflicts in favor of the media. This is not because the First Amendment bars the imposition of tort liability on the media for its newsgathering practices. It does not. Rather, tort law has failed to seize the opportunity to create meaninful privacy protection. After surveying the economic, philosophical, and practical obstacles to reform, this Article proposes to rejuvenate the tort of intrusion to tip the balance between privacy and the press back in privacy's direction. Working within the framework …

Swingers: Morality Legislation & The Limits Of State Police Power, Raymond Shih Ray Ku

Faculty Publications

This article examines whether Florida can legitimately convict the swingers pursuant to the Florida Constitution specifically, and principles of constitutional law in general, and concludes that it cannot.

Hiv Name Reporting And Partner Notification In New York State, Sonia Bhatnager

Fordham Urban Law Journal

This Article focuses on a 1998 New York law that required physicians and other health officials to report individuals who test positive for HIV, AIDS, or other HIV-related illnesses to the municipal health commissioner. As New York has the highest rate of reported AIDS cases, the Article notes that the state's decision to enact this law could have significant influence on other states. It begins by describing the partner notification system laws in the United States, and then presents arguments for and against partner notification. The Article ultimately argues for a modified version of the New York law. This refined …

Friends Of The Court? The Ethics Of Amicus Brief Writing In First Amendment Litigation, Allison Lucas

Fordham Urban Law Journal

This Article explores the ethics of writing amicus briefs as they relate to defamation and privacy issues by focusing on two specific cases, Rice v. Paladin and Khawar v. Globe, International. It begins with a history of amicus curaie briefs, followed by a discussion of the two cases. In Paladin, a family sued a publishing company arguing that a book it published aided and abetted a murder. In Khawar, a photo was wrongly placed in a book and was subsequently printed in a newspaper. In both cases, amicus briefs were submitted on the part of the defendants from large media …

What Place For Family Privacy?, Martha Albertson Fineman

Faculty Articles

This nuclear unit is thought to be in "crisis" because of the tendency of many marriages to dissemble and dissolve. Some people claim that society is also in a state of crisis as a result of marital instability. Many are concerned by the assembling of "deviant" and competing intimate entities claiming entitlement to the benefits and privileges previously extended to marriage." The family has become the symbolic terrain for the cultural war in which our society is increasingly mired. If one believes the family is not inherently limited to any essential or natural form, but is as contrived as any …

Federalism And Family, Libby Adler

Libby S. Adler

This article takes up the axiomatic place of family law under federalism. Family is often depicted as belonging squarely in the state law domain, reflecting its nature as a matter of moral deliberation, rather than of, say, commerce or constitutional rights. This article demonstrates, however, that family law is a matter of federal law in an endless number of substantive areas, from immigration and taxation to privacy in the marital bedroom and the relative rights of putative and presumed fathers. It asks how the innumerable exceptions to the rule about family law’s place under federalism come to be rationalized. The …