Law Commons^™

Surveillance Normalization, Christian Sundquist

Articles

Since the start of the COVID-19 pandemic, the government has expanded public surveillance measures in an attempt to combat the spread of the virus. As the pandemic wears on, racialized communities and other marginalized groups are disproportionately affected by this increased level of surveillance. This article argues that increases in public surveillance as a result of the COVID-19 pandemic give rise to the normalization of surveillance in day-to-day life, with serious consequences for racialized communities and other marginalized groups. This article explores the legal and regulatory effects of surveillance normalization, as well as how to protect civil rights and liberties …

Protecting One's Own Privacy In A Big Data Economy, Anita L. Allen

All Faculty Scholarship

Big Data is the vast quantities of information amenable to large-scale collection, storage, and analysis. Using such data, companies and researchers can deploy complex algorithms and artificial intelligence technologies to reveal otherwise unascertained patterns, links, behaviors, trends, identities, and practical knowledge. The information that comprises Big Data arises from government and business practices, consumer transactions, and the digital applications sometimes referred to as the “Internet of Things.” Individuals invisibly contribute to Big Data whenever they live digital lifestyles or otherwise participate in the digital economy, such as when they shop with a credit card, get treated at a hospital, apply …

The Civil Rights-Civil Liberties Divide, Christopher W. Schmidt

All Faculty Scholarship

Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Essay explains how this differentiation arose and considers its consequences.

Although there is a certain inherent logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech …

Victory Without Success? – The Guantanamo Litigation, Permanent Preventive Detention, And Resisting Injustice, Jules Lobel

Articles

When the Center for Constitutional Rights (CCR) brought the first habeas cases challenging the Executive’s right to detain prisoners in a law free zone at Guantanamo in 2002, almost no legal commentator gave the plaintiffs much chance of succeeding. Yet, two years later in 2004, after losing in both the District Court and Court of Appeals, the Supreme Court in Rasul v. Bush handed CCR a resounding victory. Four years later, the Supreme Court again ruled in CCR’s favor in 2008 in Boumediene v. Bush, holding that the detainees had a constitutional right to habeas and declaring the Congressional …

The Preventive Paradigm And The Perils Of Ad Hoc Balancing, Jules Lobel

Articles

This article addresses the claim that times of crisis require jettisoning legal rules in favor of ad hoc balancing. Part I demonstrates that the coercive preventive measures adopted by the Bush administration in carrying out the War on Terror discarded clear legal rules in favor of ad hoc balancing and relied on suspicions rather than objective evidence. Part II examines the claims of prevention paradigm supporters that ad hoc balancing is necessary in the new post-911 era in order to reach decisions that correctly weigh the values of liberty and peace versus national security. This article argues that discarding the …

Preventive Detention: Prisoners, Suspected Terrorists And Permanent Emergency, Jules Lobel

Articles

Central to the United States government’s strategy after the September 11th attacks has been a shift from punishing unlawful conduct to pre-empting possible or potential dangers. This strategy threatens to undermine fundamental principles of both constitutional law and international law which prohibit certain government action based on mere suspicion or perceived threat. The law normally requires that the government wait until a person or nation has committed or is attempting to commit a criminal act before it may employ force in response. The dangers of a policy of preventive detention have been analyzed from a number of perspectives. Historians have …

The War On Terrorism And Civil Liberties, Jules Lobel

Articles

Throughout American history, we have grappled with the problem of balancing liberty versus security in times of war or national emergency. Our history is littered with sordid examples of the Constitution's silence during war or perceived national emergency. The Bush Administration’s War on Terror has once again forced a reckoning requiring Americans to balance liberty and national security in wartime. President Bush has stated, "[w]e believe in democracy and rule of law and the Constitution. But we're under attack.” President Bush, Attorney General Ashcroft and other governmental leaders have argued that in war, "the Constitution does not give foreign enemies …