Law Commons^™

Asking For It: Gendered Dimensions Of Surveillance Capitalism, Jessica Rizzo

Emancipations: A Journal of Critical Social Analysis

Advertising and privacy were once seen as mutually antagonistic. In the 1950s and 1960s, Americans went to court to fight for their right to be free from the invasion of privacy presented by unwanted advertising, but a strange realignment took place in the 1970s. Radical feminists were among those who were extremely concerned about the collection and computerization of personal data—they worried about private enterprise getting a hold of that data and using it to target women—but liberal feminists went in a different direction, making friends with advertising because they saw it as strategically valuable.

Liberal feminists argued that in …

Perlindungan Atas Privasi Konsumen Dalam Layanan Reservasi Tiket Online Dari Pt. Kereta Api Indonesia, Aprilia Susanti

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The significant increase in online activities cannot be separated from the many active internet users who use mobile internet connections to carry out their daily activities, one of which is for the convenience of making ticket reservations at PT. Indonesian Railways (KAI). The purpose of this research is to find out the study of the business law of protecting consumer privacy in the online ticketing service of PT. KAI. Data collection was carried out by means of a literature study of the relationship between laws and regulations in consumer protection and the position of PT. KAI as business actors and …

Inadequate Privacy: The Necessity Of Hipaa Reform In A Post-Dobbs World, Katherine Robertson

Seattle University Law Review

Part I of this Comment will provide an overview of HIPAA and the legal impacts of Dobbs. Part II will discuss the anticipatory response to the impacts of Dobbs on PHI by addressing the response from (1) the states, (2) the Biden Administration, and (3) the medical field. Part III will discuss the loopholes that exist in HIPAA and further address the potential impacts on individuals and the medical field if reform does not occur. Finally, Part IV will argue that the reform of HIPAA is the best avenue for protecting PHI related to reproductive healthcare.

The Republic Of Letters And The Origins Of Scientific Knowledge Commons, Michael J. Madison

Book Chapters

The knowledge commons framework, deployed here in a review of the early network of scientific communication known as the Republic of Letters, combines a historical sensibility regarding the character of scientific research and communications with a modern approach to analyzing institutions for knowledge governance. Distinctions and intersections between public purposes and privacy interests are highlighted. Lessons from revisiting the Republic of Letters as knowledge commons may be useful in advancing contemporary discussions of Open Science.

Privative Copyright, Shyamkrishna Balganesh

All Faculty Scholarship

“Privative” copyright claims are infringement actions brought by authors for the unauthorized public dissemination of works that are private, unpublished, and revelatory of the author’s personal identity. Driven by considerations of authorial autonomy, dignity, and personality rather than monetary value, these claims are almost as old as Anglo-American copyright law itself. Yet modern thinking has attempted to undermine their place within copyright law and sought to move them into the domain of privacy law. This Article challenges the dominant view and argues that privative copyright claims form a legitimate part of the copyright landscape. It shows how privative copyright claims …

Privacy And Security Across Borders, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

Three recent initiatives -by the United States, European Union, and Australiaare opening salvos in what will likely be an ongoing and critically important debate about law enforcement access to data, the jurisdictional limits to such access, and the rules that apply. Each of these developments addresses a common set of challenges posed by the increased digitalization of information, the rising power of private companies delimiting access to that information, and the cross-border nature of investigations that involve digital evidence. And each has profound implications for privacy, security, and the possibility of meaningful democratic accountability and control. This Essay analyzes the …

Control Over Contemporary Photography: A Tangle Of Copyright, Right Of Publicity, And The First Amendment, Jessica Silbey

Faculty Scholarship

Professional photographers who make photographs of people negotiate a tense relationship between their own creative freedoms and the right of their subjects to control their images. This negotiation formally takes place over the terrain of copyright, right of publicity, and the First Amendment. Informally, photographers describe implied understandings and practice norms guiding their relationship with subjects, infrequently memorialized in short, boilerplate contractual releases. This short essay explores these formal and informal practices described by contemporary professional photographers. Although the evidence for this essay comes from professional photographic practice culled from interviews with contemporary photographers, the analysis of the evidence speaks …

Microsoft Ireland, The Cloud Act, And International Lawmaking 2.0, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

On March 23, President Trump signed the CLOUD Act, 1 thereby mooting one of the most closely watched Supreme Court cases this term: the Microsoft Ireland case. 2 This essay examines these extraordinary and fast-moving developments, explaining how the Act resolves the Supreme Court case and addresses the complicated questions of jurisdiction over data in the cloud. The developments represent a classic case of international lawmaking via domestic regulation, as mediated by major multinational corporations that manage so much of the world's data.

When Privacy Almost Won: Time, Inc. V. Hill (1967), Samantha Barbas

Samantha Barbas

Drawing on previously unexplored and unpublished archival papers of Richard Nixon, the plaintiffs’ lawyer in the case, and the justices of the Warren Court, this article tells the story of the seminal First Amendment case Time, Inc. v. Hill (1967). In Hill, the Supreme Court for the first time addressed the conflict between the right to privacy and freedom of the press. The Court constitutionalized tort liability for invasion of privacy, acknowledging that it raised First Amendment issues and must be governed by constitutional standards. Hill substantially diminished privacy rights; today it is difficult if not impossible to recover against …

Justice Blackmun And Individual Rights, Diane P. Wood

Dickinson Law Review (2017-Present)

Of the many contributions Justice Blackmun has made to American jurisprudence, surely his record in the area of individual rights stands out for its importance. Throughout his career on the Supreme Court, he has displayed concern for a wide variety of individual and civil rights. He has rendered decisions on matters ranging from the most personal interests in autonomy and freedom from interference from government in life’s private realms, to the increasingly complex problems posed by discrimination based upon race, sex, national origin, alienage, illegitimacy, sexual orientation, and other characteristics. As his views have become well known to the public, …

Female Autonomy: An Analysis Of Privacy And Equality Doctrine For Reproductive Rights, Elizabeth Levi

Political Science Honors Projects

What is the constitutional basis for women’s equality? Recently, scholars have suggested that as the right to privacy has floundered against the political undoing of women's access to abortion, equal protection arguments have grown stronger. This thesis investigates the feminist utility and limits of the equality and privacy arguments. Taking liberal feminism and feminist legal theory as analytical lenses, I offer interpretations of gender discrimination, reproductive rights, and marriage equality case law. By this framework, I argue that while an equality argument is less inherently oppressive towards women than the privacy doctrine, equality doctrine has been constructed thus far to …

The Judicial Legacy Of Louis Brandeis And The Nature Of American Constitutionalism, Edward A. Purcell Jr.

Articles & Chapters

No abstract provided.

Commentary, Critical Legal Theory In Intellectual Property And Information Law Scholarship, Cardozo Arts & Entertainment Law Journal Spring Symposium, Sonia K. Katyal, Peter Goodrich

Sonia Katyal

The very definition and scope of CLS (critical legal studies) is itself subject to debate. Some scholars characterize CLS as scholarship that employs a particular methodology—more of a “means” than an “end.” On the other hand, some scholars contend that CLS scholarship demonstrates a collective commitment to a political end goal—an emancipation of sorts —through the identification of, and resistance to, exploitative power structures that are reinforced through law and legal institutions. After a brief golden age, CLS scholarship was infamously marginalized in legal academia and its sub-disciplines. But CLS themes now appear to be making a resurgence—at least in …

Privacy, Police Power, And The Growth Of Public Power In The Early Twentieth Century: A Not So Unlikely Coexistence, Carol Nackenoff

Maryland Law Review

No abstract provided.

When Privacy Almost Won: Time, Inc. V. Hill (1967), Samantha Barbas

Journal Articles

Drawing on previously unexplored and unpublished archival papers of Richard Nixon, the plaintiffs’ lawyer in the case, and the justices of the Warren Court, this article tells the story of the seminal First Amendment case Time, Inc. v. Hill (1967). In Hill, the Supreme Court for the first time addressed the conflict between the right to privacy and freedom of the press. The Court constitutionalized tort liability for invasion of privacy, acknowledging that it raised First Amendment issues and must be governed by constitutional standards. Hill substantially diminished privacy rights; today it is difficult if not impossible to recover against …

Marital Supremacy And The Constitution Of The Nonmarital Family, Serena Mayeri

All Faculty Scholarship

Despite a transformative half century of social change, marital status still matters. The marriage equality movement has drawn attention to the many benefits conferred in law by marriage at a time when the “marriage gap” between affluent and poor Americans widens and rates of nonmarital childbearing soar. This Essay explores the contested history of marital supremacy—the legal privileging of marriage—through the lens of the “illegitimacy” cases of the 1960s and 1970s. Often remembered as a triumph for nonmarital families, these decisions defined the constitutional harm of illegitimacy classifications as the unjust punishment of innocent children for the “sins” of their …

Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz

Touro Law Review

No abstract provided.

A Corporate Right To Privacy, Elizabeth Pollman

All Faculty Scholarship

The debate over the scope of constitutional protections for corporations has exploded with commentary on recent or pending Supreme Court cases, but scholars have left unexplored some of the hardest questions for the future, and the ones that offer the greatest potential for better understanding the nature of corporate rights. This Article analyzes one of those questions — whether corporations have, or should have, a constitutional right to privacy. First, the Article examines the contours of the question in Supreme Court jurisprudence and provides the first scholarly treatment of the growing body of conflicting law in the lower courts on …

Commentary, Critical Legal Theory In Intellectual Property And Information Law Scholarship, Cardozo Arts & Entertainment Law Journal Spring Symposium, Sonia K. Katyal, Peter Goodrich

Faculty Scholarship

The very definition and scope of CLS (critical legal studies) is itself subject to debate. Some scholars characterize CLS as scholarship that employs a particular methodology—more of a “means” than an “end.” On the other hand, some scholars contend that CLS scholarship demonstrates a collective commitment to a political end goal—an emancipation of sorts —through the identification of, and resistance to, exploitative power structures that are reinforced through law and legal institutions. After a brief golden age, CLS scholarship was infamously marginalized in legal academia and its sub-disciplines. But CLS themes now appear to be making a resurgence—at least in …

The Devil Comes To Kansas: A Story Of Free Love, Sexual Privacy, And The Law, Charles J. Reid Jr.

Michigan Journal of Gender & Law

On Sunday, September 19, 1886, Moses Harman, the editor of the radical newspaper Lucifer the Light-Bearer, presided over an inherently contradictory event-a free-love marriage ceremony between his associate editor, the thirty-seven-year-old Edwin Walker, and Moses' own daughter, the sixteen-year-old Lillian. The case that the two Harmans and Walker wished to present aimed to transform marriage from a public to a private relationship and from a permanent and exclusive one to a temporary one that permitted potentially many partners. State v. Walker and its parties have received some scholarly notice, but the truly radical quality of the arguments Moses, Edwin, and …

Mapping Online Privacy, Jacqueline D. Lipton

Articles

Privacy scholars have recently outlined difficulties in applying existing concepts of personal privacy to the maturing Internet. With Web 2.0 technologies, more people have more opportunities to post information about themselves and others online, often with scant regard for individual privacy. Shifting notions of 'reasonable expectations of privacy' in the context of blogs, wikis, and online social networks create challenges for privacy regulation. Courts and commentators struggle with Web 2.0 privacy incursions without the benefit of a clear regulatory framework. This article offers a map of privacy that might help delineate at least the outer boundaries of Web 2.0 privacy. …

Brandeis & Warren's 'The Right To Privacy And The Birth Of The Right To Privacy', Ben Bratman

Articles

Privacy law and conceptions of a right to privacy have, of course, evolved considerably since 1890 when future Supreme Court Justice Louis Brandeis and Boston attorney Samuel Warren penned their now ageless article, The Right to Privacy, 4 Harv. L. Rev. 193, in which they argued the law should recognize such a right and impose liability in tort for intrusions on it. But quite apart from any argument about how attenuated the link might be between Brandeis and Warren's specific proposals and the current state of privacy law, is it fair to say, as so many scholars and judges repeatedly …

Recovering The Original Fourth Amendment, Thomas Y. Davies

Michigan Law Review

Claims regarding the original or intended meaning of constitutional texts are commonplace in constitutional argument and analysis. All such claims are subject to an implicit validity criterion - only historically authentic assertions should matter. The rub is that the original meaning commonly attributed to a constitutional text may not be authentic. The historical Fourth Amendment is a case in point. If American judges, lawyers, or law teachers were asked what the Framers intended when they adopted the Fourth Amendment, they would likely answer that the Framers intended that all searches and seizures conducted by government officers must be reasonable given …

Book Preface, Hendrik Hartog, Thomas A. Green

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

At her death in December 1997, Betsy Clark had been working for more than a dozen years on a study tentatively entitled "Women, Church and State: Religion and the Culture of Individual Rights in Nineteenth-Century America." Between 1987 and 1995, several of the planned chapters had appeared in law reviews and in history journals. Another chapter had been written and revised before and during the first stages of her illness. Two chapters can be found in preliminary form in her 1989 Princeton dissertation and had been presented to a colloquium at Harvard Law School. But other chapters planned for the …

Privacy In A Public Society: Human Rights In Conflict, David Clark Esseks

Michigan Law Review

A Review of Privacy in a Public Society: Human Rights in Conflict by Richard F. Hixson