Law Commons^™

Reclaiming Personal Privacy Rights Through The Freedom Of Intimate Association, Nancy C. Marcus

Faculty Scholarship

The United States has entered a new constitutional era where substantive due process, under attack by the Supreme Court itself, can no longer be viewed as a solid foundation for the securing of personal privacy rights. In a post-Dobbs v. Jackson Women’s Health Organization world, the right to personal privacy, long understood to be protected under the Fifth and Fourteenth Amendments’ Due Process Clauses, is in need of a new doctrinal home. The evisceration of modern substantive due process in the context of abortion rights implicates and endangers LGBTQ+ rights and other personal privacy rights as well. As such, …

Yes, Alito, There Is A Right To Privacy: Why The Leaked Dobbs Opinion Is Doctrinally Unsound, Nancy C. Marcus

Faculty Scholarship

On June 24, 2022, the Supreme Court released the final Dobbs majority opinion, which is substantially identical to the draft opinion. Consequently, the critique contained in this essay applies equally to the final Dobbs opinion.

On May 2, 2022, a draft majority opinion dated February 2022 and authored by Justice Alito in Dobbs v. Jackson Women’s Health Organization was leaked to the public. This Essay addresses the doctrinal infirmities of the underlying analysis of the draft Dobbs opinion, as well as the resulting dangers posed for the protection of fundamental privacy rights and liberties in contexts even beyond abortion.

The …

The Value Of Deviance: Understanding Contextual Privacy, Timothy Casey

Faculty Scholarship

Recent decisions by the Supreme Court in Carpenter v. United States and the Illinois Supreme Court in Rosenbach v. Six Flags Entertainment Corporation signal a shift in the traditional understanding of what exactly is protected by a privacy interest. Carpenter distinguished between a police officer’s observation of a suspect’s location and a perpetual catalogue of a person’s movements obtained through cell site location information (CSLI). The pervasive and vast quantity of information from CSLI exposed a protected privacy interest. In Rosenbach, the Illinois Supreme Court found the unique and personal quality of biometric information meant that consent and disclosure requirements …

Certain Certiorari: The Digital Privacy Rights Of Probationers, Daniel Yeager

Faculty Scholarship

In a recent oral argument, a judge on the California Court of Appeal told me they had "at least 50" pending cases on the constitutionality of probation conditions authorizing suspicionless searches of digital devices. As counsel of record in three of those cases, I feel positioned to comment on this hot topic within criminal law. My intention here is less to reconcile California's cases on suspicionless searches of probationers' digital devices than to locate them within the precedents of the United States Supreme Court, which is bound before long to pick up a case for the same purpose.

Internet Giants As Quasi-Governmental Actors And The Limits Of Contractual Consent, Nancy Kim, D.A. Jeremy Telman

Faculty Scholarship

Although the government’s data-mining program relied heavily on information and technology that the government received from private companies, relatively little of the public outrage generated by Edward Snowden’s revelations was directed at those private companies. We argue that the mystique of the Internet giants and the myth of contractual consent combine to mute criticisms that otherwise might be directed at the real data-mining masterminds. As a result, consumers are deemed to have consented to the use of their private information in ways that they would not agree to had they known the purposes to which their information would be put …

Overcoming Hiddenness: The Role Of Intentions In Fourth Amendment Analysis, Daniel B. Yeager

Faculty Scholarship

This Article rehearses a response to the problems posed to and by the Supreme Court's attempts to work out the meaning and operation of the word "search." After commencing Part II by meditating on the notion of privacy, I take up its relation to the antecedent suspicion or knowledge that Fourth-Amendment law requires as a justification for all privacy invasions. From there, I look specifically at that uneasy relation in Supreme Court jurisprudence, which has come to privilege privacy over property as a Fourth Amendment value. From there, Part III reviews the sources or bases that can tell us what …

Stubbornness Of Pretexts, Daniel B. Yeager

Faculty Scholarship

This Article will reflect on (1) how the Whren v. United States failure to acknowledge what counts as a pretext accounts for the residual confusion as to whether or not Whren really has killed off the pretext argument in constitutional criminal procedure, and (2) the extent to which the Court in Sullivan compounded that failure, which I hope to lightly correct here by distinguishing motives from intentions and then by elaborating the role that each plays, or at least should play, in Fourth Amendment jurisprudence.

Does Privacy Really Have A Problem In The Law Of Criminal Procedure?, Daniel B. Yeager

Faculty Scholarship

Agreeing with William Stuntz's conclusion that privacy retains a significant position in the law of criminal procedure, the author defends a privacy-oriented procedural regime that can .be reconciled with an activist regulatory state. Part One of this Article suggests that the comparatively light judicial supervision of police coercion owes more to the conditions under which force is used than to what Stuntz views as the Court's indifference to what police do to us, or to its "obsession" over what police can see and hear. By redescribing questions of privacy, or questions of privacy and coercion, merely as questions of coercion, …