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Catalyzing Privacy Law, Anupam Chander, Margot E. Kaminski, William Mcgeveran Jan 2021

Catalyzing Privacy Law, Anupam Chander, Margot E. Kaminski, William Mcgeveran

Articles

The United States famously lacks a comprehensive federal data privacy law. In the past year, however, over half the states have proposed broad privacy bills or have established task forces to propose possible privacy legislation. Meanwhile, congressional committees are holding hearings on multiple privacy bills. What is catalyzing this legislative momentum? Some believe that Europe’s General Data Protection Regulation (GDPR), which came into force in 2018, is the driving factor. But with the California Consumer Privacy Act (CCPA) which took effect in January 2020, California has emerged as an alternate contender in the race to set the new standard ...


Free Speech And Democracy: A Primer For Twenty-First Century Reformers, Toni M. Massaro, Helen Norton Jan 2021

Free Speech And Democracy: A Primer For Twenty-First Century Reformers, Toni M. Massaro, Helen Norton

Articles

Left unfettered, the twenty-first-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment’s eighteenth-century writers but also to its twentieth-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited — by both government and powerful private actors alike — as a tool for controlling others’ speech and frustrating meaningful public discourse and democratic outcomes.

The Court’s longstanding First Amendment doctrine rests on a model of how speech works that is no longer accurate. This invites ...


Government Falsehoods, Democratic Harm, And The Constitution, Helen Norton Jan 2021

Government Falsehoods, Democratic Harm, And The Constitution, Helen Norton

Articles

No abstract provided.


A Recent Renaissance In Privacy Law, Margot Kaminski Jan 2020

A Recent Renaissance In Privacy Law, Margot Kaminski

Articles

Considering the recent increased attention to privacy law issues amid the typically slow pace of legal change.


Internet Architecture And Disability, Blake E. Reid Jan 2020

Internet Architecture And Disability, Blake E. Reid

Articles

The Internet is essential for education, employment, information, and cultural and democratic participation. For tens of millions of people with disabilities in the United States, barriers to accessing the Internet—including the visual presentation of information to people who are blind or visually impaired, the aural presentation of information to people who are deaf or hard of hearing, and the persistence of Internet technology, interfaces, and content without regard to prohibitive cognitive load for people with cognitive and intellectual disabilities—collectively pose one of the most significant civil rights issues of the information age. Yet disability law lacks a comprehensive ...


The Supreme Court's Facilitation Of White Christian Nationalism, Caroline Mala Corbin Jan 2020

The Supreme Court's Facilitation Of White Christian Nationalism, Caroline Mala Corbin

Articles

Doug Jager, a band student of Native-American ancestry, complained about the Christian prayers at his Georgia public school’s football games. Rather than address his concerns, the school lectured him on Christianity and proposed an alternative that appeared neutral yet would result in the continuation of the Christian prayers. In striking down the school’s proposal, Judge Frank M. Johnson Jr. understood some of the ramifications of state-sponsored Christianity.

Despite Supreme Court rulings limiting Christian invocations at public-school events, government-sponsored Christian prayers and Christian symbols remain plentiful in the United States. This proliferation of government-sponsored Christianity around the country both ...


Media Literacy Beyond The National Security Frame, Lili Levi Jan 2020

Media Literacy Beyond The National Security Frame, Lili Levi

Articles

No abstract provided.


Discrimination, The Speech That Enables It, And The First Amendment, Helen Norton Jan 2020

Discrimination, The Speech That Enables It, And The First Amendment, Helen Norton

Articles

Imagine that you’re interviewing for your dream job, only to be asked by the hiring committee whether you’re pregnant. Or HIV positive. Or Muslim. Does the First Amendment protect your interviewers’ inquiries from government regulation? This Article explores that question.

Antidiscrimination laws forbid employers, housing providers, insurers, lenders, and other gatekeepers from relying on certain characteristics in their decision-making. Many of these laws also regulate those actors’ speech by prohibiting them from inquiring about applicants’ protected class characteristics; these provisions seek to stop illegal discrimination before it occurs by preventing gatekeepers from eliciting information that would enable them ...


Symposium: The California Consumer Privacy Act, Margot Kaminski, Jacob Snow, Felix Wu, Justin Hughes Jan 2020

Symposium: The California Consumer Privacy Act, Margot Kaminski, Jacob Snow, Felix Wu, Justin Hughes

Articles

This symposium discussion of the Loyola of Los Angeles Law Review focuses on the newly enacted California Consumer Privacy Act (CPPA), a statute signed into state law by then-Governor Jerry Brown on June 28, 2018 and effective as of January 1, 2020. The panel was held on February 20, 2020.

The panelists discuss how businesses are responding to the new law and obstacles for consumers to make effective use of the law’s protections and rights. Most importantly, the panelists grapple with questions courts are likely to have to address, including the definition of personal information under the CCPA, the ...


The Supreme Court’S Two Constitutions: A First Look At The “Reverse Polarity” Cases, Arthur D. Hellman Jan 2020

The Supreme Court’S Two Constitutions: A First Look At The “Reverse Polarity” Cases, Arthur D. Hellman

Articles

In the traditional approach to ideological classification, “liberal” judicial decisions are those that support civil liberties claims; “conservative” decisions are those that reject them. That view – particularly associated with the Warren Court era – is reflected in numerous academic writings and even an article by a prominent liberal judge. Today, however, there is mounting evidence that the traditional assumptions about the liberal-conservative divide are incorrect or at best incomplete. In at least some areas of constitutional law, the traditional characterizations have been reversed. Across a wide variety of constitutional issues, support for claims under the Bill of Rights or the Reconstruction ...


Balancing Religious Liberties And Antidiscrimination Interests In The Public Employment Context: The Impact Of Masterpiece Cakeshop And American Legion, Brenda Bauges Jan 2020

Balancing Religious Liberties And Antidiscrimination Interests In The Public Employment Context: The Impact Of Masterpiece Cakeshop And American Legion, Brenda Bauges

Articles

No abstract provided.


Janus's Two Faces, Kate Andrias Jun 2019

Janus's Two Faces, Kate Andrias

Articles

In ancient Roman religion and myth, Janus is the god of beginnings, transitions, and endings. He is often depicted as having two faces, one looking to the future and one to the past. The Supreme Court’s Janus v AFSCME case of last Term is fittingly named.1 Stunning in its disregard of principles of stare decisis, Janus overruled the forty-yearold precedent Abood v Detroit Board of Education. 2 The Janus decision marks the end of the post–New Deal compromise with respect to public sector unions and the FirstAmendment.Looking to the future, Janus lays the groundwork for further ...


Christian Legislative Prayers And Christian Nationalism, Caroline Mala Corbin Jan 2019

Christian Legislative Prayers And Christian Nationalism, Caroline Mala Corbin

Articles

No abstract provided.


Opportunistic Originalism And The Establishment Clause, Caroline Mala Corbin Jan 2019

Opportunistic Originalism And The Establishment Clause, Caroline Mala Corbin

Articles

This Article argues that the Supreme Court's use of originalism is opportunistic because sometimes the Court relies on it, and sometimes it does not. This inconsistency is evident in two recent decisions with significant Establishment Clause consequences: Town of Greece v. Galloway (2014) and Trinity Lutheran Church v. Comer (2017). In Town of Greece, the Supreme Court applied an originalist analysis to uphold the government's policy of sponsoring predominantly Christian prayers before town meetings. In Trinity Lutheran Church, the Supreme Court failed to conduct an originalist analysis of direct government funding to churches before ordering a state to ...


Sex, Lies, And Videotape: Deep Fakes And Free Speech Delusions, Mary Anne Franks, Ari Ezra Waldman Jan 2019

Sex, Lies, And Videotape: Deep Fakes And Free Speech Delusions, Mary Anne Franks, Ari Ezra Waldman

Articles

No abstract provided.


Equal Protection And The Male Gaze: An Approach To New Hampshire V. Lilley, Nicholas Mignanelli Jan 2019

Equal Protection And The Male Gaze: An Approach To New Hampshire V. Lilley, Nicholas Mignanelli

Articles

This Article uses New Hampshire v. Lilley, a case recently decided by the New Hampshire Supreme Court, as a starting point for an equal protection analysis of indecent exposure laws that distinguish between women and men. After discussing contemporary equal protection jurisprudence and historicizing these laws, this Article uses the film theorist Laura Mulvey's concept of the "male gaze" to demonstrate how overbroad generalizations about sex and sexuality serve as the foundation for this legal distinction. This Article concludes by emphasizing that municipalities and states may continue to enact and enforce indecent exposure laws that reflect community standards, so ...


Pregnancy And The First Amendment, Helen Norton Jan 2019

Pregnancy And The First Amendment, Helen Norton

Articles

Suppose that you are pregnant and seated in the waiting room of a Planned Parenthood clinic, or maybe in a facility that advertises “Pregnant? We Can Help You.” This Essay discusses the First Amendment rules that apply to the government’s control of what you are about to hear.

If the government funds your clinic’s program, the U.S. Supreme Court has held that it does not violate the First Amendment’s Free Speech Clause when it forbids your health-care provider from offering you information about available abortion services. Nor does the government violate the Free Speech Clause, the ...


Recording As Heckling, Scott Skinner-Thompson Jan 2019

Recording As Heckling, Scott Skinner-Thompson

Articles

A growing body of authority recognizes that citizen recording of police officers and public space is protected by the First Amendment. But the judicial and scholarly momentum behind the emerging “right to record” fails to fully incorporate recording’s cost to another important right that also furthers First Amendment principles: the right to privacy.

This Article helps fill that gap by comprehensively analyzing the First Amendment interests of both the right to record and the right to privacy in public while highlighting the role of technology in altering the First Amendment landscape. Recording information can be critical to future speech ...


Powerful Speakers And Their Listeners, Helen Norton Jan 2019

Powerful Speakers And Their Listeners, Helen Norton

Articles

In certain settings, law sometimes puts listeners first when their First Amendment interests collide with speakers’. And collide they often do. Sometimes speakers prefer to tell lies when their listeners thirst for the truth. Sometimes listeners hope that speakers will reveal their secrets, while those speakers resist disclosure. And at still other times, speakers seek to address certain listeners when those listeners long to be left alone. When speakers’ and listeners’ First Amendment interests collide, whose interests should prevail? Law sometimes – but not always – puts listeners’ interests first in settings outside of public discourse where those listeners have less information ...


“And Yet It Moves”—The First Amendment And Certainty, Ronald K.L. Collins Jan 2018

“And Yet It Moves”—The First Amendment And Certainty, Ronald K.L. Collins

Articles

Surprisingly few, if any, works on the First Amendment have explored the relation between free speech and certainty. The same holds true for decisional law. While this relationship is inherent in much free speech theory and doctrine, its treatment has nonetheless been rather opaque. In what follows, the author teases out— philosophically, textually, and operationally—the significance of that relationship and what it means for our First Amendment jurisprudence. In the process, he examines how the First Amendment operates to counter claims of certainty and likewise how it is employed to demand a degree of certainty from those who wish ...


Remedies And The Government's Constitutionally Harmful Speech, Helen Norton Jan 2018

Remedies And The Government's Constitutionally Harmful Speech, Helen Norton

Articles

Although governments have engaged in expression from their inception, only recently have we begun to consider the ways in which the government’s speech sometimes threatens our constitutional rights. In my contribution to this symposium, I seek to show that although the search for constitutional remedies for the government’s harmful expression is challenging, it is far from futile. This search is also increasingly important at a time when the government’s expressive powers continue to grow—along with its willingness to use these powers for disturbing purposes and with troubling consequences.

More specifically, in certain circumstances, injunctive relief, declaratory ...


Robotic Speakers And Human Listeners, Helen Norton Jan 2018

Robotic Speakers And Human Listeners, Helen Norton

Articles

In their new book, Robotica, Ron Collins and David Skover assert that we protect speech not so much because of its value to speakers but instead because of its affirmative value to listeners. If we assume that the First Amendment is largely, if not entirely, about serving listeners’ interests—in other words, that it’s listeners all the way down—what would a listener-centered approach to robotic speech require? This short symposium essay briefly discusses the complicated and sometimes even dark side of robotic speech from a listener-centered perspective.


Is There Any Silver Lining To Trinity Lutheran Church, Inc. V. Comer?, Caroline Mala Corbin Jan 2018

Is There Any Silver Lining To Trinity Lutheran Church, Inc. V. Comer?, Caroline Mala Corbin

Articles

No abstract provided.


Real "Fake News" And Fake "Fake News", Lili Levi Jan 2018

Real "Fake News" And Fake "Fake News", Lili Levi

Articles

No abstract provided.


Fearless Speech, Mary Anne Franks Jan 2018

Fearless Speech, Mary Anne Franks

Articles

The American conception of free speech is primarily defined as the freedom to say whatever one wants, with little regard for the quality, context, or impact of the speech. Thus, American free speech doctrine is often characterized as neutral with regard to the speaker and the content of speech; in practice, however, it consistently privileges powerful over vulnerable speakers and harmful over critical speech.

From Philadelphia to Skokie to Charlottesville, the First Amendment has been interpreted to protect speech by white men that silences and endangers women and minorities. As free speech doctrine and practice become increasingly concerned with private ...


The Government's Manufacture Of Doubt, Helen Norton Jan 2018

The Government's Manufacture Of Doubt, Helen Norton

Articles

“The manufacture of doubt” refers to a speaker’s strategic efforts to undermine factual assertions that threaten its self-interest. This strategy was perhaps most famously employed by the tobacco industry in its longstanding campaign to contest mounting medical evidence linking cigarettes to a wide range of health risks. At its best, the government’s speech can counter such efforts and protect the public interest, as exemplified by the Surgeon General’s groundbreaking 1964 report on the dangers of tobacco, a report that challenged the industry’s preferred narrative. But the government’s speech is not always so heroic, and governments ...


(At Least) Thirteen Ways Of Looking At Election Lies, Helen Norton Jan 2018

(At Least) Thirteen Ways Of Looking At Election Lies, Helen Norton

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Lies take many forms. Because lies vary so greatly in their motivations and consequences (among many other qualities), philosophers have long sought to catalog them to help make sense of their diversity and complexity. Legal scholars too have classified lies in various ways to explain why we punish some and protect others. This symposium essay offers yet another taxonomy of lies, focusing specifically on election lies — that is, lies told during or about elections. We can divide and describe election lies in a wide variety of ways: by speaker, by motive, by subject matter, by audience, by means of delivery ...


Privacy's Double Standards, Scott Skinner-Thompson Jan 2018

Privacy's Double Standards, Scott Skinner-Thompson

Articles

Where the right to privacy exists, it should be available to all people. If not universally available, then privacy rights should be particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, there is evidence that people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This disparity occurs despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections.

This Article unearths disparate outcomes in public disclosure tort ...


Corporations As Conduits: A Cautionary Note About Regulating Hypotheticals, Douglas M. Spencer Jan 2018

Corporations As Conduits: A Cautionary Note About Regulating Hypotheticals, Douglas M. Spencer

Articles

No abstract provided.


The First Queer Right, Scott Skinner-Thompson Jan 2018

The First Queer Right, Scott Skinner-Thompson

Articles

Current legal disputes may lead one to believe that the greatest threat to LGBTQ rights is the First Amendment’s protections for speech, association, and religion, which are currently being mustered to challenge LGBTQ anti-discrimination protections. But underappreciated today is the role of free speech and free association in advancing the well-being of LGBTQ individuals, as explained in Professor Carlos Ball’s important new book, The First Amendment and LGBT Equality: A Contentious History. In many ways the First Amendment’s protections for free expression and association operated as what I label “the first queer right.”

Decades before the Supreme ...