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Articles 1 - 11 of 11
Full-Text Articles in Public Law and Legal Theory
Partisanship Creep, Katherine Shaw
Partisanship Creep, Katherine Shaw
Northwestern University Law Review
It was once well settled and uncontroversial—reflected in legislative enactments, Executive Branch practice, judicial doctrine, and the broader constitutional culture—that the Constitution imposed limits on government partisanship. This principle was one instantiation of a broader set of rule of law principles: that law is not merely an instrument of political power; that government resources should not be used to further partisan interests, or to damage partisan adversaries.
For at least a century, each branch of the federal government has participated in the development and articulation of this nonpartisanship principle. In the legislative realm, federal statutes beginning with the 1883 Pendleton …
The Fourth Amendment Stripped Bare: Substantiating Prisoners' Reasonable Right To Bodily Privacy, Meher Babbar
The Fourth Amendment Stripped Bare: Substantiating Prisoners' Reasonable Right To Bodily Privacy, Meher Babbar
Northwestern University Law Review
Prisoners’ rights to bodily privacy under the Fourth Amendment are limited, allowing detention officials to strip-search them for contraband. The extent to which the Fourth Amendment protects prisoners, however, is uncertain. Questions regarding whether strip searches require reasonable suspicion and the manner in which officials may conduct strip searches have troubled courts for decades. In the absence of clear guidance from the Supreme Court, courts have reached inconsistent conclusions, imperiling the human rights and dignity of prisoners. This Note argues that courts should define and apply prisoners’ rights to bodily privacy with reference to international human-rights law, specifically the United …
Information Fiduciaries And Political Microtargeting: A Legal Framework For Regulating Political Advertising On Digital Platforms, Kimberly Rhum
Information Fiduciaries And Political Microtargeting: A Legal Framework For Regulating Political Advertising On Digital Platforms, Kimberly Rhum
Northwestern University Law Review
Digital technologies have taken individualized advertising to an unprecedented level. But the convenience and efficiency of such highly tailored content comes at a high price: unbridled access to our personal data. The rise of sophisticated data-driven practices, otherwise known as “Big Data,” enables large datasets to be analyzed in ways that reveal useful patterns about human behavior. Thanks to these novel analytical techniques, businesses can cater to individual consumer needs better than ever before. Yet the opportunities presented by Big Data pose new ethical challenges.
Significant scholarly research has examined algorithmic discrimination and consumer manipulation, as well as the ways …
Is Solitary Confinement A Punishment?, John F. Stinneford
Is Solitary Confinement A Punishment?, John F. Stinneford
Northwestern University Law Review
The United States Constitution imposes a variety of constraints on the imposition of punishment, including the requirements that the punishment be authorized by a preexisting penal statute and ordered by a lawful judicial sentence. Today, prison administrators impose solitary confinement on thousands of prisoners despite the fact that neither of these requirements has been met. Is this imposition a “punishment without law,” or is it a mere exercise of administrative discretion? In an 1890 case called In re Medley, the Supreme Court held that solitary confinement is a separate punishment subject to constitutional restraints, but it has ignored this …
Punishment In Prison: Constituting The "Normal" And The "Atypical" In Solitary And Other Forms Of Confinement, Judith Resnik, Hirsa Amin, Sophie Angelis, Megan Hauptman, Laura Kokotailo, Aseem Mehta, Madeline Silva, Tor Tarantola, Meredith Wheeler
Punishment In Prison: Constituting The "Normal" And The "Atypical" In Solitary And Other Forms Of Confinement, Judith Resnik, Hirsa Amin, Sophie Angelis, Megan Hauptman, Laura Kokotailo, Aseem Mehta, Madeline Silva, Tor Tarantola, Meredith Wheeler
Northwestern University Law Review
What aspects of human liberty does incarceration impinge? A remarkable group of Black and white prisoners, most of whom had little formal education and no resources, raised that question in the 1960s and 1970s. Incarcerated individuals asked judges for relief from corporal punishment; radical food deprivations; strip cells; solitary confinement in dark cells; prohibitions on bringing these claims to courts, on religious observance, and on receiving reading materials; and from transfers to long- term isolation and to higher security levels.
Judges concluded that some facets of prison that were once ordinary features of incarceration, such as racial segregation, rampant violence, …
Multifactoral Free Speech, Alexander Tsesis
Multifactoral Free Speech, Alexander Tsesis
Northwestern University Law Review
This Article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social issues arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the …
Cultural Democracy And The First Amendment, Jack M. Balkin
Cultural Democracy And The First Amendment, Jack M. Balkin
Northwestern University Law Review
Freedom of speech secures cultural democracy as well as political democracy. Just as it is important to make state power accountable to citizens, it is also important to give people a say over the development of forms of cultural power that transcend the state. In a free society, people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals.
The digital age shows the advantages of a cultural theory over purely democracy-based theories. First, the cultural account offers a more convincing explanation of why expression that seems …
Will The Real Lawmakers Please Stand Up: Congressional Standing In Instances Of Presidential Nonenforcement, Bethany R. Pickett
Will The Real Lawmakers Please Stand Up: Congressional Standing In Instances Of Presidential Nonenforcement, Bethany R. Pickett
Northwestern University Law Review
The Take Care Clause obligates the President to enforce the law. Yet increasingly, presidents use nonenforcement to unilaterally waive legislative provisions to serve their executive policy goals. In doing so, the President’s inaction takes the practical form of a congressional repeal—a task that is solely reserved for Congress under the Constitution. Presidential nonenforcement therefore usurps Congress’s unique responsibility in setting the national policy agenda.
This Note addresses whether Congress has standing to sue in instances of presidential nonenforcement to realign and reaffirm Congress’s unique legislative role. In answering this question, this Note examines legislative standing precedent and argues that the …
The Curious Case Of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up, Monu Bedi
The Curious Case Of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up, Monu Bedi
Northwestern University Law Review
Police surveillance ability and information gathering capacity have a dynamic relationship with technology. Greater advancements in technology make it easier for the police to surveil individuals and collect information. This state of affairs leads to heightened concerns over Fourth Amendment protection. This issue has most recently played out in the context of police collecting cell phone location data. Courts disagree on whether and to what extent this data garners Fourth Amendment protection. Underlying this disagreement rests a hitherto overlooked tension between two interrelated Fourth Amendment doctrines—the third-party and the public disclosure doctrines. While both vitiate privacy protection and are commonly …
Judiciary Rising: Constitutional Change In The United Kingdom, Erin F. Delaney
Judiciary Rising: Constitutional Change In The United Kingdom, Erin F. Delaney
Northwestern University Law Review
No abstract provided.
Linking Rule 9(B) Pleading And The First-To-File Rule To Advance The Goals Of The False Claims Act, Karin Lee
Linking Rule 9(B) Pleading And The First-To-File Rule To Advance The Goals Of The False Claims Act, Karin Lee
Northwestern University Law Review
No abstract provided.