Law Commons^™

Exemplary Legal Writing 2018: Seven Recommendations, G. Edward White, Sarah Seo

Faculty Scholarship

Richard Fallon likely did not plan the publication of this book to coincide with the aftermath of the Kavanaugh hearings or the phrase “Obama judges or Trump judges, Bush judges or Clinton judges.” After all, the author has been writing about legitimacy and the law for over a decade, and this book brings together many of his ideas in previously published law review articles. But the timing could not be better, all the more so for young scholars or those otherwise new to Fallon’s writings who will appreciate an accessible account for why and when Supreme Court decisions merit legitimacy …

Social Justice And Silicon Valley: A Perspective On The Apple-Fbi Case And The “Going Dark” Debate, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Dna And Distrust, Kerry Abrams, Brandon L. Garrett

Faculty Scholarship

Over the past three decades, government regulation and funding of DNA testing has reshaped the use of genetic evidence across various fields, including criminal law, family law, and employment law. Courts have struggled with questions of when and whether to treat genetic evidence as implicating individual rights, policy trade-offs, or federalism problems. We identify two modes of genetic testing: identification testing, used to establish a person’s identity, and predictive testing, which seeks to predict outcomes for a person. Judges and lawmakers have often drawn a bright line at predictive testing, while allowing uninhibited identity testing. The U.S. Supreme Court in …

Could Data Broker Information Threaten Physician Prescribing And Professional Behavior?, Marco D. Huesch, Michael K. Ong, Barak D. Richman

Faculty Scholarship

Privacy is threatened by the extent of data collected and sold by consumer data brokers. Physicians, as individual consumers, leave a ‘data trail’ in the offline (e.g. through traditional shopping) and online worlds (e.g. through online purchases and use of social media). Such data could easily and legally be used without a physician’s knowledge or consent to influence prescribing practices or other physician professional behavior. We sought to determine the extent to which such consumer data was available on a sample of more than 3,000 physicians, healthcare faculty and healthcare system staff at one university’s health units. Using just work …

Public And Private In International Investment Law: An Integrated Systems Approach, Julie A. Maupin

Faculty Scholarship

Members of the invisible college of international investment lawyers are engaged in a fierce battle over the conceptual foundations of their common legal enterprise. The debate centers on whether the international legal regime governing foreign direct investment is a de facto transnational public governance system or merely an institutional support structure for the settlement of essentially private investment disputes. These attempts to establish the public versus private nature of the regime are misconceived. International investment law deals with both public and private concerns, impacts upon both public and private actors, and crosses over traditional divides separating public law from private …

Redefining Genomic Privacy: Trust And Empowerment, Yaniv Erlich, James B. Williams, David Glazer, Kenneth Yocum, Nita A. Farahany, Maynard Olson, Arvind Narayanan, Lincoln D. Stein, Jan A. Witkowski, Robert C. Kain

Faculty Scholarship

Fulfilling the promise of the genetic revolution requires the analysis of large datasets containing information from thousands to millions of participants. However, sharing human genomic data requires protecting subjects from potential harm. Current models rely on de-identification techniques in which privacy versus data utility becomes a zero-sum game. Instead, we propose the use of trust-enabling techniques to create a solution in which researchers and participants both win. To do so we introduce three principles that facilitate trust in genetic research and outline one possible framework built upon those principles. Our hope is that such trust-centric frameworks provide a sustainable solution …

Testing The Boundaries Of Family Privacy: The Special Case Of Pediatric Sibling Transplants, Doriane Lambelet Coleman

Faculty Scholarship

A six-year-old girl suffers third-degree burns over eighty percent of her body. Her chance of survival with minimal scarring is said to depend on her identical twin sister’s availability as an organ source. There are other transplant options—including the parents—but because the twins’ skin is “equivalent,” a “sibling transplant” is likely to result in a better medical and aesthetic outcome for the burned twin. Her doctor thus proposes to harvest her healthy sister’s skin on “her backside from her bra line down to the bottom of her buttocks or possibly her thighs.” This procedure would be repeated up to three …

La Interseccion De La Responsabilidad Extracontractual Y El Derecho Constitucional Y Los Derechos Humanos, George C. Christie

Faculty Scholarship

No abstract provided.

Freedom Of Expression And Its Competitors, George C. Christie

Faculty Scholarship

The recognition of an increasing number of basic human rights, such as in the European Convention on Human Rights, has had the paradoxical effect of requiring courts in the common-law world to consider whether the extensive protection given by the common law to expression that was not false or misleading must be modified to accommodate these newly recognized basic rights. The most important of these newly recognized rights is the right of privacy, although expression has other competitors as well, such as what might be called a right to be spared the emotional trauma caused by abusive language. This article …

Incriminating Thoughts, Nita A. Farahany

Faculty Scholarship

The neuroscience revolution poses profound challenges to current selfincrimination doctrine and exposes a deep conceptual confusion at the heart of the doctrine. In Schmerber v. California, the Court held that under the Self- Incrimination Clause of the Fifth Amendment, no person shall be compelled to “prove a charge [from] his own mouth,” but a person may be compelled to provide real or physical evidence. This testimonial/physical dichotomy has failed to achieve its intended simplifying purpose. For nearly fifty years scholars and practitioners have lamented its impracticability and its inconsistency with the underlying purpose of the privilege. This Article seeks to …

Searching Secrets, Nita A. Farahany

Faculty Scholarship

A Fourth Amendment violation has traditionally involved a physical intrusion such as the search of a house or the seizure of a person or her papers. Today, investigators rarely need to break down doors, rummage through drawers, or invade one’s peace and repose to obtain incriminating evidence in an investigation. Instead, the government may unobtrusively intercept information from electronic files, GPS transmissions, and intangible communications. In the near future, it may even be possible to intercept information directly from suspects’ brains. Courts and scholars have analogized modern searches for information to searches of tangible property like containers and have treated …

Judicial Decision Making In A World Of Natural Law And Natural Rights, George C. Christie

Faculty Scholarship

This article was my contribution to a symposium celebrating the achievements of John Finnis held at the Villanova University School of Law. Finnis’ greatest work is his Natural Law and Natural Rights. I agree with Finnis’ rejection of an approach to natural law which focuses on the notion of natural rights. Finnis’ approach instead focuses on a natural law that is based on the idea that there are certain basic human goods such as the search for knowledge, the maintenance of life, the sharing of fellowship with other human beings, the capacity to enjoy aesthetic experiences, and the exercise …

Responses To The Five Questions, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Sorrell V. Ims Health And The End Of The Constitutional Double Standard, Ernest A. Young

Faculty Scholarship

No abstract provided.

Guns As Smut: Defending The Home-Bound Second Amendment, Darrell A. H. Miller

Faculty Scholarship

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees a personal, individual right to keep and bear arms. But the Court left lower courts and legislatures adrift on the fundamental question of scope. While the Court stated in dicta that some regulation may survive constitutional scrutiny, it left the precise contours of the right, and even the method by which to determine those contours, for 'future evaluation."

This Article offers a provocative proposal for tackling the issue of Second Amendment scope, one tucked in many dresser drawers across the nation: Treat the Second Amendment …

European Versus American Liberty: A Comparative Privacy Analysis Of Antiterrorism Data Mining, Francesca E. Bignami

Faculty Scholarship

It is common knowledge that privacy in the market and the media is protected less in the United States than in Europe. Since the terrorist attacks of September 11, 2001, it has become obvious that the right to privacy in the government sphere too is protected less in the United States than in Europe. This Article brings alive the legal difference by considering the case-real in the United States, hypothetical in Europe-of a spy agency's database of call records, created for the purpose of identifying potential terrorists. Under U.S. law such an antiterrorism database might very well be legal. But …

Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca E. Bignami

Faculty Scholarship

This paper examines a recent twist in EU data protection law. In the 1990s, the European Union was still primarily a market-creating organization and data protection in the European Union was aimed at rights abuses by market actors. Since the terrorist attacks of New York, Madrid, and London, however, cooperation on fighting crime has accelerated. Now, the challenge for the European Union is to protect privacy in its emerging system of criminal justice. This paper analyzes the first EU law to address data privacy in crime-fighting -- the Data Retention Directive. Based on a detailed examination of the Directive's legislative …

Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca Bignami

Faculty Scholarship

This paper examines a recent twist in EU data protection law. In the 1990s, the European Union was still primarily a market-creating organization and data protection in the European Union was aimed at rights abuses by market actors. Since the terrorist attacks of New York, Madrid, and London, however, cooperation on fighting crime has accelerated. Now, the challenge for the European Union is to protect privacy in its emerging system of criminal justice. This paper analyzes the first EU law to address data privacy in crime-fighting—the Data Retention Directive. Based on a detailed examination of the Directive’s legislative history, the …

Reining In The Data Traders: A Tort For The Misuse Of Personal Information, Sarah Ludington

Faculty Scholarship

In 2005, three spectacular data security breaches focused public attention on the vast databases of personal information held by data traders such as ChoicePoint and LexisNexis, and the vulnerability of that data. The personal information of hundreds of thousands of people had either been hacked or sold to identity thieves, yet the data traders refused to reveal to those people the specifics of the information sold or stolen. While Congress and many state legislatures swiftly introduced bills to force data traders to be more accountable to their data subjects, fewer states actually enacted laws, and none of the federal bills …

Transgovernmental Networks Vs. Democracy: The Case Of The European Information Privacy Network, Francesca E. Bignami

Faculty Scholarship

No abstract provided.

What's In A Name? Law's Identity Under The Tort Of Appropriation, Jonathan Kahn

Faculty Scholarship

This article is divided into three parts. In Part I, the article explores the notion that under the tort of appropriation, a person’s name is understood to implicate critical aspects of her identity. This notion is explored in relation to specific historical cases raising the issues of whether a woman who adopts her husband’s name has a property right in that name and whether a person who adopts a professional or stage name has separate rights in that name apart from his legal name. Second, Part II focuses on a person’s right to maintain the integrity of his physical image. …

Biotechnology And The Legal Constitution Of The Self: Managing Identity In Science, The Market, And Society, Jonathan Kahn

Faculty Scholarship

This article considers how certain ideas underlying the tort of appropriation may enable use more effectively to deal with the problems presented by a case such Moore v. Regents of the University of California which dealt with property rights of Moore’s spleen cells. First, the author explores how the tort of appropriation of identity opens up new approaches to inform and perhaps supplement principles of property law as a guide to managing genetic information or other materials that seem intimately bound up with a particular human subject. Secondly, the author analyzes how the various opinions produced by the Supreme Court …

Reconstructive Tasks For A Liberal Feminist Conception Of Privacy, Linda C. Mcclain

Faculty Scholarship

If liberal conceptions of privacy survive appropriately vigorous feminist critique and re-emerge in beneficially reconstructed forms, then why haven't more feminists gotten the message and embraced, rather than spurned, such privacy? If liberal privacy survives feminist critique, does it face an even more serious threat if contemporary society has both diminishing expectations of and taste for privacy? Does the transformation of the very notion of "private life," due in part to the rise of such new technologies as the Internet and its seemingly endless possibilities for making oneself accessible to others and gaining access to others, suggest the need for …

Fourth Amendment Accommodations: (Un)Compelling Public Needs, Balancing Acts, And The Fiction Of Consent, Guy-Uriel Charles

Faculty Scholarship

The problems of public housing-including crime, drugs, and gun violence- have received an enormous amount of national attention. Much attention has also focused on warrantless searches and consent searches as solutions to these problems. This Note addresses the constitutionality of these proposals and asserts that if the Supreme Court's current Fourth Amendment jurisprudence is taken to its logical extremes, warrantless searches in public housing can be found constitutional. The author argues, however, that such an interpretation fails to strike the proper balance between public need and privacy in the public housing context. The Note concludes by proposing alternative consent-based regimes …

Securing Deliberative Autonomy, James E. Fleming

Faculty Scholarship

In this article, Professor Fleming proposes to tether the right of autonomy by grounding it within a constitutional constructivism, a guidingframeworkfor constitutional theory with two fundamental themes: deliberative democracy and deliberative autonomy. He advances deliberative autonomy as a unifying theme that shows the coherence and structure of certain substantive liberties on a list of familiar "unenumerated" fundamental rights (commonly classed under privacy, autonomy, or substantive due process). The bedrock structure of deliberative autonomy secures basic liberties that are significant preconditions for persons' ability to deliberate about and make certain fundamental decisions affecting their destiny, identity, or way of life. As …

Inviolability And Privacy: The Castle, The Sanctuary, And The Body, Linda C. Mcclain

Faculty Scholarship

This article explores the idea and imagery of inviolability. I use a trilogy of terms-the castle, the sanctuary, and the body-to illuminate different loci of inviolability and to show how notions of sacredness and sanctity undergird the legal protection of inviolability. These images, familiar from privacy jurisprudence, provide a useful lens through which to examine the association between inviolability and gender. Familiar feminist critiques suggest that concepts such as privacy have served to deny, rather than to secure, inviolability for women and women's bodies. I explore the interplay of inviolability and privacy in some prominent feminist accounts of sexuality, and …

In Defense Of Truth, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Amici For Appellees: Brief For Bioethicists For Privacy As Amicus Curiae Supporting Appelles Brief For Bioethicists For Privacy As Amicus Curiae Supporting Appellees, George J. Annas, Leonard H. Glantz, Wendy K. Mariner

Faculty Scholarship

Amicus is an ad hoc group of 57 philosophers, theologians, attorneys and physicians .. .who teach medical ethics to medical students and physicians. The members believe that permitting competent adults to make important, personal medical decisions in consultation with their physician is a fundamental principle of medical ethics, and that the doctor-patient relationship deserves the constitutional protection the Court has afforded it under the right of privacy.

New York's Right Of Privacy – The Need For Change, Kent Greenawalt

Faculty Scholarship

In 1890 Samuel Warren and Louis Brandeis wrote a famous article on the right to privacy. Concerned especially with newspaper publications about private and family matters, they urged that courts recognize an explicit right to privacy from unreasonable publicity. According to Warren and Brandeis, certain already recognized rights did in fact protect a person's wish to keep his private thoughts private, though these 1ights were founded on some more traditional legal theories. For example, the privilege of a writer of a letter to bar anyone's publication of the letter had been articulated in decisions as a property right, even when …