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Articles 1 - 9 of 9
Full-Text Articles in Law
Unlocking The Fifth Amendment: Passwords And Encrypted Devices, Laurent Sacharoff
Unlocking The Fifth Amendment: Passwords And Encrypted Devices, Laurent Sacharoff
Laurent Sacharoff
Each year, law enforcement seizes thousands of electronic devices—smartphones, laptops, and notebooks—that it cannot open without the suspect’s password. Without this password, the information on the device sits completely scrambled behind a wall of encryption. Sometimes agents will be able to obtain the information by hacking, discovering copies of data on the cloud, or obtaining the password voluntarily from the suspects themselves. But when they cannot, may the government compel suspects to disclose or enter their password? This Article considers the Fifth Amendment protection against compelled disclosures of passwords—a question that has split and confused courts. It measures this right …
Who Should Own Police Body Camera Videos?, Laurent Sacharoff, Sarah Lustbader
Who Should Own Police Body Camera Videos?, Laurent Sacharoff, Sarah Lustbader
Laurent Sacharoff
Numerous cities, states, and localities have adopted police body camera programs to enhance police accountability in the wake of repeated instances of police misconduct, as well as recent reports of more deep-seated police problems. These body camera programs hold great promise to achieve accountability, often backed by millions of dollars of federal grants.
But so far, this promise of accountability has gone largely unrealized, in part because police departments exercise near-total control over body camera programs and the videos themselves. In fact, the police view these programs chiefly as a tool of ordinary law enforcement rather than accountability — as …
Trespass And Deception, Laurent Sacharoff
Trespass And Deception, Laurent Sacharoff
Laurent Sacharoff
Police routinely use deception to get into people’s homes without warrant or probable cause. They may pose as UPS delivery persons or homebuyers, or they may say they are looking for a kidnapping victim or a pedophile, when really they are looking for drugs or guns. Recent years have brought hundreds of reported decisions concerning such police ruses.
When the police lie about their identity or their purpose to enter a home, as when they pose as a homebuyer, the courts surprisingly, but routinely, approve these deceptions under the Fourth Amendment. Such intrusions, the courts reason, do not violate a …
Conspiracy As Contract, Laurent Sacharoff
Conspiracy As Contract, Laurent Sacharoff
Laurent Sacharoff
This article considers the central concept of criminal conspiracy — the agreement. It shows how both courts and scholars have almost entirely failed to define it. Even more surprisingly, neither discusses how “agreement” in criminal conspiracy compares with the agreement in contract law. Instead, courts have diluted the agreement requirement by substituting “mutual understanding” or “slight connection,” leading to uncertainty, unfairness, and a profusion of conspiracy convictions for mere presence or association.
This article argues courts should define agreement, and do so as an exchange of promises between the conspirators to commit a crime. An exchange of promises meets the …
Constitutional Trespass, Laurent Sacharoff
Constitutional Trespass, Laurent Sacharoff
Laurent Sacharoff
The Supreme Court has recently created a trespass test for Fourth Amendment searches without explaining what type of trespass it envisions—one based on the common law of 1791, on the specific trespass law of the state where the search occurred, or on some other trespass principles. Indeed Florida v. Jardines, decided in 2013, raises the question whether the Court has created a trespass test at all, a seeming turnabout that largely recapitulates the Court’s 125- year history of confusion in which it has embraced, rejected, or simply ignored trespass as a test from era to era or even year to …
The Relational Nature Of Privacy, Laurent Sacharoff
The Relational Nature Of Privacy, Laurent Sacharoff
Laurent Sacharoff
The hard Fourth Amendment cases, especially those involving surveillance, ask whether the police investigative tactic at issue counts as a “search”; if not, the Fourth Amendment does not apply at all. Under the Court’s main test, at least for surveillance without a trespass, the police conduct a “search” if they invade a person’s reasonable expectation of privacy.
But when the Court assesses Fourth Amendment privacy, it treats it as an all-or-nothing concept without regard to the relation between the person searched and the person searching. For example, the Court has held that when the police rummage through a person’s garbage …
Miranda's Hidden Right, Laurent Sacharoff
Miranda's Hidden Right, Laurent Sacharoff
Laurent Sacharoff
Miranda v. Arizona said that a suspect can waive her right to remain silent but also that she must invoke it. How can both be true about the same right? This article argues that the Miranda “right to remain silent” actually contains two sub-rights: the right not to speak, and the right to cut off police questioning. The Court has never distinguished these as two separate rights - instead usually using the term “right to remain silent” for both - and has thus created confusion over what can be waived and what must be invoked. But when we separate the …
Former Presidents And Executive Privilege, Laurent Sacharoff
Former Presidents And Executive Privilege, Laurent Sacharoff
Laurent Sacharoff
The Constitution provides former Presidents with no powers or role, and yet numerous former Presidents including Truman and Nixon have asserted executive privilege in order to withhold information from Congress, historians, and the public. The most recent former President, George W. Bush, is likely to make similar assertions based upon his sweeping view of the rights of former Presidents as reflected in his recently revoked Executive Order 13,233, potentially leading to a constitutional collision between the rights of former Presidents and those of Congress. This article argues that notwithstanding Nixon v. Administrator of General Services, former Presidents should retain no …
Listener Interests In Compelled Speech Cases, Laurent Sacharoff
Listener Interests In Compelled Speech Cases, Laurent Sacharoff
Laurent Sacharoff
The First Amendment prohibits the government from compelling speech. But numerous scholars have recently identified a fundamental problem with the compelled speech doctrine: it is unclear exactly why the First Amendment should protect against compelled speech at all. This article argues, first, that traditional explanations of the compelled speech doctrine fail because they focus on the speaker's "freedom of mind," even though much compelled speech neither affects what the speaker believes nor misleads listeners about that speaker's actual beliefs. Second, this article proposes a solution: that we should abandon any consideration of the speaker's freedom of mind. Instead the Court …