Law Commons^™

Telegraph, Telephone And The Internet: The Making Of The Symbiotic Model Of Surveillance States, Dongsheng Zang

Articles

In the early 2000s, shortly before the September 11 attacks, Daniel J. Solove noted that computer databases in the United States were controlled by public as well as private bureaucracies. In that sense, Solove argued, the "Big Brother" metaphor "fails to capture the most important dimension of the database problem." In his 2008 Lockhart lecture, constitutional law scholar Jack M. Balkin argued that the United States has gradually transformed from a welfare and national security state to a National Surveillance State: "a new form of governance that features the collection, collation, and analysis of information about populations both in the …

Privacy And National Politics: Fingerprint And Dna Litigation In Japan And The United States Compared, Dongsheng Zang

Articles

Drawing cases from two related areas of law-fingerprint and DNA (deoxyribonucleic acid) data-this Article proposes a modified framework, built on the Balkin-Levinson emphasis on national politics: First, national politics understood as partisan rivalry cannot account for what I call doctrinal lock-in in this Article, where I will demonstrate that in different stages of American politics-the Lochner era, the New Deal era, and Civil Rights era-courts across the nation ruled predominantly in favor of public data collectors-state and federal law enforcement in fingerprint cases. From the 1990s, when DNA data became hot targets of law enforcement, the United States Supreme Court …

Property, Privacy And Power: Rethinking The Fourth Amendment In The Wake Of U.S. V. Jones, Dana Raigrodski

Articles

This Article seeks to uncover invisible gender, race, and class biases driving modern Fourth Amendment discourse. Unlike traditional theories, which tend to view the Fourth Amendment through the lens of either privacy or property, this Article advances a theory focusing on the real issues of power and control that fuel Fourth Amendment jurisprudence. Specifically, the Article exposes the private/public and home/market dichotomies that are central to the Supreme Court rhetoric as arbitrary and artificial. It finds that current Fourth Amendment discourse protects the interest of white, privileged men and perpetuates male ideology as well as male domination. That focus leaves …

Fourth Amendment Remedial Equilibration: A Comment On Herring V. United States And Pearson V. Callahan, David B. Owens

Articles

In two recent decisions, the Supreme Court addressed remedies under the Fourth Amendment by assuming that this remedial construction did not alter the value of the underlying right meant to be protected by the Constitution. First, in Herring v. United States, the court broadened exceptions to the exclusionary rule and implied that suppression may not be required for "negligent" errors generally. Then, in Pearson v. Callahan, the Court abandoned it's "battle-of-order" rule - which required courts to consider the right before inquiring whether that right was "clearly established" at the time of the violation - when considering qualified …

Reasonableness And Objectivity: A Feminist Discourse Of The Fourth Amendment, Dana Raigrodski

Articles

This article suggests that a critical reexamination of the Fourth Amendment and its jurisprudence through feminist lenses can shed new light and add to our understanding of it. These insights, in turn, can and should generate a positive feminist Fourth Amendment jurisprudence—a distinctive feminist voice to be integrated systematically into the law of search and seizure, leading to a transformation of the Fourth Amendment itself. Applying feminist theories to particular issues and normative layers of current Fourth Amendment jurisprudence may help guide us through the more difficult task of imagining a feminist jurisprudence of search and seizure law.

Consent Engendered: A Feminist Critique Of Consensual Fourth Amendment Searches, Dana Raigrodski

Articles

As I will argue, the Court's consent-to-search cases are driven by this patriarchal ideology to maintain social structures of power disparities and to perpetuate the subordination of women, minorities, and other disempowered members of society.

We need to acknowledge the power and submission paradigm that underlies police-citizen encounters and to scrutinize the entire notion of consent. In order to confront both power and consent, I will turn to feminist critique of consent, particularly in the area of rape, and to feminist writings about choice and agency. Based on these writings I will argue that by distinguishing coerced consent to a …

Breaking Out Of "Custody": A Feminist Voice In Constitutional Criminal Procedure, Dana Raigrodski

Articles

In this Essay, I suggest that reexamination of this field of law through a feminist lens can shed new light and add to the understanding of constitutional criminal procedure. These insights, in turn, can and should generate a positive feminist jurisprudence of criminal procedure—a distinctive feminist voice to be integrated systematically into our constitutional criminal procedure and our criminal justice system. Applying feminist legal theories to particular areas of constitutional criminal procedure may help guide us through the more difficult task of constructing a positive feminist jurisprudence of constitutional criminal procedure. Many areas of constitutional criminal procedure lend themselves as …

Unreasonable Searches And Seizures Of Papers, Eric Schnapper

Articles

This article argues that the Supreme Court's original view of the history and meaning of the fourth amendment was correct: seizures of papers were condemned in eighteenth-century England without respect to the validity of any underlying warrant, and the search and seizure clause thus embodies requirements independent of the warrant clause.

Part I discusses the eighteenth-century English decisions, including Entick, and concludes that the case law of that era had two separate branches. One branch forbade general warrants and led to the adoption of the warrant clause; the other, exemplified by Entick, prohibited the seizure of certain papers …

High On The Seas: Drug Smuggling, The Fourth Amendment, And Warrantless Searches At Sea, Daniel H. Foote

Articles

Today no statute prohibits the mere possession of marijuana or other controlled substances beyond the three-mile offshore territorial limit of the United States; but prosecutions relating to vessels carrying controlled substances outside the territorial waters may be based upon charges of conspiracy to import or distribute the substances. In attempting to halt the recent increase in smuggling of such contraband by sea, the United States Coast Guard and other law enforcement agencies have aggressively exercised their powers to stop and search vessels. Two parallel statutory provisions, 14 U.S.C. § 89(a) and 19 U.S.C. § 158,(a), give the Coast Guard and …

Search And Seizure In Alaska: A Comprehensive Review, Jeff M. Feldman

Articles

In the eighteen years since Alaska achieved statehood, fifty-two cases involving issues of search and seizure have reached the Alaska Supreme Court. This article will analyze these cases with an eyetowards outlining the law of search and seizure in Alaska, isolating those areas in which the Alaska Supreme Court has departed from prevailing search and seizure doctrine, and using past decisions to predict the probable outcomes to search and seizure issues still unresolved in Alaska.