Constitutional Law Commons^™

For Whom The Data Tolls: A Reunified Theory Of Fourth And Fifth Amendment Jurisprudence, Bryan H. Choi

Cardozo Law Review

Data privacy demands a reunified theory of the Fourth and Fifth Amendments. Data technologies allow personal information to be disembodied from physical bodies and "possessed" simultaneously by both first persons and third parties. As a result, the government has been able to use a divide-and-conquer strategy to obtain incriminating evidence alternately from the data intermediary or from the suspect.

Currently, Fourth Amendment doctrine and Fifth Amendment doctrine work at cross-purposes. The privacy community has already sounded the alarm on the "third-party doctrine," which allows the government to sidestep the Fourth Amendment when demanding evidence from third parties. But few have …

Desta V. Knesset, Miriam Naor, Salim Joubran, Esther Hayut, Yoram Danziger, Zvi Zylbertal, Uzi Vogelman, Isaac Amit, Hanan Melcer, Neal Hendel

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

The petition challenged the constitutionality of sec. 30A and Chapter D of the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law) as amended by the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Law, 5775-2014, which establish that infiltrators into Israel can be detained in custody for a period of up to three months, …

Aggregation For Me, But Not For Thee: The Rise Of Common Claims In Non-Class Litigation, Maureen Carroll

Cardozo Law Review

When a plaintiff seeks an injunction or declaration based on a defendant's generally applicable policy or practice, the case has an inherently aggregate dimension, regardless of whether the plaintiff brings it as a class action or as an individual suit. Recent cases involving marriage rights for same-sex couples, affirmative action in higher education, the National Security Agency's metadata program, and the Affordable Care Act's contraceptive mandate - among others - have all taken the non-class form, notwithstanding the underlying claims' amenability to class treatment.

Difficult problems arise when a plaintiff brings a common claim in non-class litigation. The plaintiff might …

Public Danger, James Dawson

Cardozo Law Review

This Article provides the first account of the term "public danger," which appears in the Grand Jury Clause of the Fifth Amendment. Drawing on historical records from the seventeenth and eighteenth centuries, the Article argues that the proper reading of "public danger" is a broad one. On this theory, "public danger" includes not just impending enemy invasions, but also a host of less serious threats (such as plagues, financial panics, jailbreaks, and natural disasters). This broad reading is supported by constitutional history. In 1789, the first Congress rejected a proposal that would have replaced the phrase "public danger" in the …

The Broken System Of Parallel Patent Proceedings: How To Create A Unified, One-Judgment System, Christopher Ilardi

Cardozo Law Review

No abstract provided.

Holding The Line: Customs And Border Protection's Expansion Of The Border Search Exception And The Ensuing Destruction Of Interior Fourth Amendment Rights, Hannah Robbins

Cardozo Law Review

No abstract provided.

Corporate Rights And Individual Interests: The Corporate Right To Privacy As A Bulwark Against Warrantless Government Surveillance, Kayla Robinson

Cardozo Law Review

No abstract provided.

Yadid V. The Coordination Committee Of The Organizations Of Persons Of Moroccan Origin In Israel By The Committee Chairperson Rafael Ben Shushan, Noam Sohlberg, Miriam Naor, Hanan Melcer

Translated Opinions

The Israeli Knesset adopted the Victims of Nazi Persecution (Restrictions on Fees for Handling Pension Claims under an Administrative Decision) (Amendment No. 20) Bill, 5775-2014. The questions presented by this petition are as follows: A. Does the amendment infringe the constitutional rights of the Petitioners in a manner that is repugnant to the Limitations Clause? B. Is the retroactive application of the amendment just and proper under the circumstances? C. Was there any fundamental flaw in the legislative procedure of the amendment that would justify its annulment?

The Supreme Court, sitting as High Court of Justice, denied the petition, holding: …

Reply Brief For Plaintiff-Appellant, Alexander A. Reinert

Amicus Briefs

Plaintiff-Appellant Daniel McGowan submits this reply in response to the Brief for Defendants-Appellees United States of America and Tracy Rivers (“Defs.’ Br.”). Defendants concede that Plaintiff was placed in solitary confinement without any statutory or regulatory authorization and solely because he authored a blog post, speech protected by the First Amendment. Nonetheless, Defendants maintain that there is no remedy for this violation of Mr. McGowan’s constitutional and common law rights. None of the reasons offered by Defendants for their position is compelling or supported by relevant law. When one steps back and considers Defendants’ brief as a whole, it is …

Adequacy Of Notice Under Cafra: Resolving Constitutional Due Process Challenges To Administrative Forfeitures, Rebecca Hausner

Cardozo Law Review

No abstract provided.

Bills, Bills, Bills: The Effect Of A Rejected Settlement On Attorney's Fees Under The Civil Rights Attorney's Fees Award Act Of 1976, Melissa Ibrahim

Cardozo Law Review

No abstract provided.

Avneri V. Knesset, Hanan Melcer, Asher Grunis, Miriam Naor, Elyakim Rubinstein, Isaac Amit, Yoram Danziger, Salim Joubran, Neal Hendel, Uzi Vogelman

Translated Opinions

Facts: The petitions sought to void the Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011 (hereinafter: the Boycott Law or the Law). The Law attributes tortious liability and establishes various administrative restrictions against anyone who knowingly publishes a public call to impose a boycott on the State of Israel, as defined by the Law. The Petitioners argued that the Law was unconstitutional for infringing various constitutional rights (inter alia, freedom of expression, the right to equality, freedom of occupation), without meeting the conditions of the “Limitation Clauses” of Basic Law: Human Dignity …

Avneri V. The Knesset (Summary), Hanan Melcer, Asher Grunis, Miriam Naor, Elyakim Rubinstein, Isaac Amit, Yoram Danziger, Neal Hendel, Salim Joubran, Uzi Vogelman

Translated Opinions

This was a petition to strike down the Law for Prevention of Damage to the State of Israel through Boycott (“Boycott Law”). This 2001 law establishes tort liability for, and sets administrative restrictions on, knowingly and publicly publishing calls for a boycott on Israel. The petitioners claimed that the Boycott Law infringes on various constitutional rights, including free expression, equality, and freedom of occupation, and because it does not pass the tests articulated in the limitations clauses of Basic Law: Human Dignity and Liberty and in Basic Law: Freedom of Occupation. A divided Court upheld most of the law's provisions.

Hussein V. Cohen, Asher Grunis, Salim Joubran, Yoram Danziger, Miriam Naor, Elyakim Rubinstein, Hanan Melcer, Esther Hayut

Translated Opinions

Facts: The appeals focused upon the question of whether properties in East Jerusalem that belong to residents of Judea and Samaria are deemed “absentee property” as defined under the Absentees’ Property Law.

Held: In dismissing the appeals, the Supreme Court held that the Absentees’ Property Law applies to properties in East Jerusalem whose owners, beneficiaries or holders are residents of Judea and Samaria. However, in light of the significant difficulties attendant to implementing the Law in accordance with its language, in general, the authorities should refrain from exercising their statutory authority in regard to such properties except in the most …

Undocumented No More: The Power Of State Citizenship, Peter L. Markowitz

Articles

An estimated eleven million undocumented immigrants live in the United States. These individuals have become integral members of American families and vital components of the American economy. Yet repeated efforts to meaningfully reform the nation's immigration laws--to more fully integrate these individuals into American society-have failed to garner sufficient political support in Congress. The prospects for significant congressional action on immigration reform remain bleak into the foreseeable future as our nation's debate on immigration has been warped by powerful, but largely inaccurate, themes of criminality, lax border enforcement, and national security threats. These themes have been crafted and cemented in …

High Court Pretense, Lower Court Candor: Judicial Impartiality After Caperton V. Massey Coal Co., Lynne H. Rambo

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

A Contagion Of Fear: Post-9/11 Alarm Expands Executive Branch Authority And Sanctions Prosecutorial Exploitation Of America's Privacy, Carol M. Bast, Cynthia A. Brown

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

The Implications Of Exclusion: How Pregnancy Exclusions Deny Women Constitutional Rights, Hannah Schwager

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Verbal Speech Versus Visual Art: Evidence Of Unequal First Amendment Protection In Right Of Publicity Jurisprudence, Daniel Forman

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Why Can't I Know How The Sausage Is Made?: How Ag-Gag Statutes Threaten Animal Welfare Groups And The First Amendment, Daniel L. Sternberg

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Defining "Navigability": Balancing State-Court Flexibility And Private Rights In Waterways, Maureen E. Brady

Cardozo Law Review

Over the course of American history, state courts have eliminated property rights in waterways through a quirk of public trust law: declaring the water in question to be "navigable" makes it public property, while declaring it "non-navigable" leaves the water subject to private control. The historical record is flooded with examples of these declarations by state courts. While some navigability rulings have protected public rights in waters against irrational private claims, others have abused this peculiarity to seize private property to placate irate, and even violent, interest groups.

The scope of this authority to craft navigability doctrine - especially whether …

Intrastate Interventions: The State Executive's Response To Local Nonenforcement, Rebecca D. Maller

Cardozo Law Review

No abstract provided.

Association For Civil Rights In Israel V. Airports Authority, Asher Grunis, Miriam Naor, Elyakim Rubinstein

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Facts: The petition concerned the security procedures for screening Israeli citizens at Israeli airports. The Petitioner’s primary claim was that Israel’s Arab citizens are generally subjected to stricter security checks than Israel’s Jewish citizens. The Petitioner argued that employing ethnicity as a criterion for the rigorousness of airport security screening of Israeli citizens is fundamentally unacceptable. The petition was submitted in 2007, but the …

Under The Prison Litigation Reform Act's So-Called Three Strikes Provision, When Does A Dismissal Count As A Strike: Coleman V. Tollefson (13-1333), Betsy Ginsberg

Articles

The Prison Litigation Reform Act of 1996 amended the federal in forma pauperis statute to include, among other provisions, what has become known as the “three strikes provision.” Under this provision, prisoners who have accumulated three strikes—three dismissals of cases that were frivolous, malicious, or failed to state a claim—are no longer permitted to proceed in forma pauperis unless they can show immediate danger of serious physical injury. This case asks the Court to determine whether a dismissal by the district court immediately counts as a strike or whether it does not count until any appeal of the dismissal has …

Zoabi V. Knesset's Ethics Committee, Miriam Naor, Esther Hayut, Elyakim Rubinstein, Hanan Melcer, Salim Joubran

Translated Opinions

This is a statement of reasons for the judgment handed down on Dec. 10, 2014, denying the petition of Petitioner 1, Member of Knesset Hannen Zoabi, in regard to the decision of the Knesset Ethics Committee that found that Petitioner 1 had violated Rule 1A of the Knesset Ethics Rules, and ordered her suspension from participation in meetings of the Knesset plenum and committees, other than for voting, for a period of six months. This decision was made following two statements to the media made by the Petitioner. One was a statement made in a radio interview several days after …

Letting Innocence Suffer: The Need For Defense Access To The Law Enforcement Dna Database, Jason Kreag

Cardozo Law Review

Law enforcement has gradually amassed a sizable DNA database that holds considerable promise for solving cold cases and identifying suspects. The Supreme Court has blessed this effort, allowing investigators to include profiles of arrestees as well as convicted persons in the database. At present, though, law enforcement has a near monopoly on use of the DNA database, leaving defendants at the whim of the law enforcement officials who control access to this tool. Legal scholars have alternatively praised and decried the database, but none has examined its prospects for proving defendants' innocence post-conviction. This Article fills that void by identifying …

The Intracorporate Conspiracy Trap, J. S. Nelson

Cardozo Law Review

In the recent case of Commonwealth v. Lynn, Pennsylvania prosecuted a Roman Catholic priest who had not abused children himself but who, to protect the archdiocese that employed him, covered up information about priests who had abused children and reassigned the priests to new parishes. This case was the first of its kind to bring criminal charges against an official of the Church solely for how he supervised the careers of priests to protect his employer.

Because the intracorporate conspiracy doctrine prohibits it, the state - as is now typical of both state and federal jurisdictions around the country …

Hijacking Justice: Assessing The Emergency Driven Analysis Of Confrontation Clause Jurisprudence, Steven C. Berlowitz

Cardozo Law Review

No abstract provided.

Goveille V. Liberty Mutual: An Opportunity To Correct The Problems Of Erisa Preemption, Edward A. Zelinsky

Articles

No abstract provided.

Online Data Breaches, Standing, And The Third-Party Doctrine, Adam Lamparello

Cardozo Law Review de•novo

This Essay argues that, in the context of online data breaches, these doctrines hinder consumers from receiving full monetary compensation and do not adequately safeguard privacy rights. For example, courts frequently dismiss consumers’ suits against online service providers for lack of standing, which results in consumers bearing the cost for damages that the providers were in a position to prevent. This Essay argues that the Supreme Court should relax the standing doctrine’s “imminent harm” requirement and permit consumers to sue providers for mitigation damages. In addition, the Court should abandon the longstanding principle that citizens lose all privacy protections in …