LSN: Rights & Liberties (Topic)最新文献

{"title":"Pope Francis, True Religion, and Religious Liberty","authors":"Joel Harrison","doi":"10.1017/JLR.2018.41","DOIUrl":"https://doi.org/10.1017/JLR.2018.41","url":null,"abstract":"This article examines Pope Francis's understanding of the relationship between church and state, the ends of civil authority, and the importance of religious liberty. It argues that Francis challenges claims made by legal and religious scholars that civil authority must be neutral as to religious ends. Francis, the article contends, uses the categories of idolatry and solidarity as opposing ends that are cultivated by civil authorities caring for, most notably, the economy and the environment. Both are religious. Idolatry is the solipsistic pursuit of created things as an ultimate end and solidarity entails living in communion with God and others. The article further considers how these arguments have shaped Francis's views on religious liberty. Francis points to the importance of civil authorities respecting conscientious objection, the desirability of cultivating healthy pluralism, and religious liberty as securing the end of solidarity. This presents two challenges: first, to recent legal scholarship questioning the special importance of religious liberty; and second, to the exercise of religious liberty itself. If religious liberty is protected for the end of solidarity, can it be exercised wrongly? The article concludes by considering the Supreme Court's 2014 Hobby Lobby decision.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115343216","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Algorithmic Transparency for the Smart City","authors":"R. Brauneis, Ellen P. Goodman","doi":"10.2139/SSRN.3012499","DOIUrl":"https://doi.org/10.2139/SSRN.3012499","url":null,"abstract":"Emerging across many disciplines are questions about algorithmic ethics – about the values embedded in artificial intelligence and big data analytics that increasingly replace human decisionmaking. Many are concerned that an algorithmic society is too opaque to be accountable for its behavior. An individual can be denied parole or denied credit, fired or not hired for reasons she will never know and cannot be articulated. In the public sector, the opacity of algorithmic decisionmaking is particularly problematic both because governmental decisions may be especially weighty, and because democratically-elected governments bear special duties of accountability. Investigative journalists have recently exposed the dangerous impenetrability of algorithmic processes used in the criminal justice field – dangerous because the predictions they make can be both erroneous and unfair, with none the wiser. \u0000We set out to test the limits of transparency around governmental deployment of big data analytics, focusing our investigation on local and state government use of predictive algorithms. It is here, in local government, that algorithmically-determined decisions can be most directly impactful. And it is here that stretched agencies are most likely to hand over the analytics to private vendors, which may make design and policy choices out of the sight of the client agencies, the public, or both. To see just how impenetrable the resulting “black box” algorithms are, we filed 42 open records requests in 23 states seeking essential information about six predictive algorithm programs. We selected the most widely-used and well-reviewed programs, including those developed by for-profit companies, nonprofits, and academic/private sector partnerships. The goal was to see if, using the open records process, we could discover what policy judgments these algorithms embody, and could evaluate their utility and fairness. \u0000To do this work, we identified what meaningful “algorithmic transparency” entails. We found that in almost every case, it wasn’t provided. Over-broad assertions of trade secrecy were a problem. But contrary to conventional wisdom, they were not the biggest obstacle. It will not usually be necessary to release the code used to execute predictive models in order to dramatically increase transparency. We conclude that publicly-deployed algorithms will be sufficiently transparent only if (1) governments generate appropriate records about their objectives for algorithmic processes and subsequent implementation and validation; (2) government contractors reveal to the public agency sufficient information about how they developed the algorithm; and (3) public agencies and courts treat trade secrecy claims as the limited exception to public disclosure that the law requires. Although it would require a multi-stakeholder process to develop best practices for record generation and disclosure, we present what we believe are eight principal types of information that s","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"249 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123315342","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Keeping Hobby Lobby in Perspective","authors":"Christopher C. Lund","doi":"10.1093/acprof:oso/9780190262525.003.0015","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780190262525.003.0015","url":null,"abstract":"In recent years, in both academic and popular circles, the free exercise of religion has grown more controversial. Discussions have become dominated by a set of high-profile cases involving issues of sexual morality — abortion, contraceptives, and (especially) gay rights. Hobby Lobby, for example, involved corporations who refused to provide employees with insurance coverage for contraceptives which were seen as abortifacients. Elane Photography involved a Christian photographer who refused to take photos for a lesbian couple’s wedding on grounds of religious conscience. Hobby Lobby, Elane Photography, and similar cases have become the face of religious liberty to the general public, and it is not clear what will happen to religious liberty because of this association. One thing is certainly clear: These developments have caused many to reconsider the wisdom of the federal Religious Freedom Restoration Act (RFRA) and its state-law analogues (state RFRAs).Yet the discussion has often lacked a sense of perspective. Hobby Lobby and Elane Photography are important cases. But most RFRA and state RFRA cases have nothing to do with discrimination or sexual morality or the culture wars. This piece points out the ways in which RFRA and state RFRAs are continuing to do valuable work for religious minorities — work that no longer seems to get much attention from anyone. Twenty-five years ago, free exercise was associated strongly with the difficult position of religious minorities in an overwhelmingly Christian America. Things are more complicated now, but that aspect of the story remains a true and vital part of it.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123093993","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Reasonable Expectation of Privacy and the Criminal Suspect","authors":"Joe Purshouse","doi":"10.1111/1468-2230.12218","DOIUrl":"https://doi.org/10.1111/1468-2230.12218","url":null,"abstract":"In In re JR38, the Supreme Court unanimously dismissed an appeal from a 14 year-old boy who argued that the dissemination of his image, taken whilst he was participating in sectarian rioting, to local newspapers, violated his rights under Article 8 of the European Convention on Human Rights (ECHR). However, the Court was divided on whether or not the measures taken by the police engaged the applicant's Article 8(1) rights at all. This case raises fundamental questions as to the scope of private life in the context of criminal investigations, and the place of the European Court of Human Rights’ ‘reasonable expectation of privacy’ test in determining whether Article 8(1) of the ECHR is engaged. This case comment subjects the majority's interpretation of Article 8(1) to critical scrutiny, concluding that this interpretation may unduly restrict the scope of Article 8 protection for those subject to criminal investigations.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129125596","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rethinking Student Cell Phone Searches","authors":"M. McAllister","doi":"10.2139/SSRN.2830880","DOIUrl":"https://doi.org/10.2139/SSRN.2830880","url":null,"abstract":"In Fourth Amendment analysis, warrants are ordinarily required to search for evidence of criminal wrongdoing. However, under the warrant requirement’s search-incident-to-arrest exception, once an individual has been placed under custodial arrest, certain warrantless searches may automatically follow, such as a search for weapons or destructible evidence potentially within the arrestee’s reach. As long as the arrest itself is lawful, the resulting search for weapons and destructible evidence requires no independent suspicion. In Riley v. California, the United States Supreme Court unanimously rejected the proposed extension of the search incident to arrest exception to cell phones, thereby requiring a warrant to search a cell phone’s digital contents notwithstanding the otherwise reduced privacy protections afforded arrestees. This article examines Riley’s impact on searches of K-12 and college students’ cell phones as an incident to a violation of law or school rule, the school setting’s analog to Riley. As of today, Riley requires probable cause and a warrant to search a cell phone’s digital contents as an incident to an ordinary arrest. However, neither of these safeguards is required to conduct the same search as an incident to a K-12 student’s suspected violation of law or school policy. Thus, Riley and K-12 precedents are in tension, particularly in those instances where K-12 students are arrested on school grounds in possession of a cell phone. The law is somewhat less clear in regards to college student cell phone searches. However, courts have recognized reduced Fourth Amendment protections there as well. After weighing the pros and cons of extending Riley to the schoolhouse gates, this article arrives at the simple conclusion that, despite its narrow holding, Riley’s sweeping pronouncements regarding the unique privacy concerns inherent in the modern cell phone demand a rethinking of the law governing student cell phone searches. Riley stated, for example, that the privacy protections owed modern cell phones are even greater than what we enjoy in our homes, the area that has traditionally received the greatest Fourth Amendment protection, thereby implying that cell phone searches, of any kind and in any place, are owed the greatest possible constitutional protection. In addition, although Riley involved searches of arrestees, who have traditionally enjoyed diminished privacy interests, the Court nevertheless found the privacy-related concerns in cell phones weighty enough to require a warrant, notwithstanding arrestees’ reduced expectations of privacy. This exact rationale can be applied to K-12 and college students, who, like arrestees, have also enjoyed reduced Fourth Amendment protections. This article concludes by proposing heightened Fourth Amendment protections for both K-12 and college cell phone searches. First, this article argues that although college students enjoy reduced expectations of privacy in certain instances, particul","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128588868","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Bond v. Floyd and Expressive Proscriptions on the Partisan Gerrymander","authors":"T. Smith","doi":"10.2139/SSRN.2797807","DOIUrl":"https://doi.org/10.2139/SSRN.2797807","url":null,"abstract":"Efforts to reframe the gerrymandering debate in First Amendment terms have been sporadic and half-baked. Drawing on pending litigation in Wisconsin and Maryland, this Article attempts to fill voids in First Amendment theory vis-a-vis the partisan gerrymander. Relying on the Supreme Court’s decision in Bond v. Floyd, the Article argues that gerrymandering should be understood as more than a numeric representational injury. It is instead, or in addition, content discrimination the objective of which is to eliminate certain views from the process of self-governance in much the same fashion as the Georgia House of Representatives refused to seat civil rights leader Julian Bond due to his views on the Vietnam War. This reconceptualization of the harm of the partisan gerrymander in turn expands the body of evidence germane to proving a constitutional violation. Most notably, evidence of political polarization in a jurisdiction and/or a legislative body sheds light on both the motive for suppressing certain partisan viewpoints and the harm of such suppression, which this Article conceives as a deliberative rather than a numerical harm. Evidence of severe partisan polarization in conjunction with proof of systemic efforts to waste the votes of those harboring disfavored viewpoints (aka the “efficiency gap”) implicate the First Amendment’s basic guarantees of free thought, expression and association.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"2013 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121760948","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Coverage/Protection Distinction in the Law of Freedom of Speech – An Essay on Meta-Doctrine in Constitutional Law","authors":"M. Tushnet","doi":"10.2139/SSRN.2770774","DOIUrl":"https://doi.org/10.2139/SSRN.2770774","url":null,"abstract":"The distinction between the First Amendment’s coverage – those human activities the regulation of which is evaluated by invoking the First Amendment – and the protection it affords – the conditions under which a regulation violates the First Amendment – has been an important component of the Amendment’s doctrinal architecture. Recent Supreme Court decisions place significant pressure on the coverage/protection distinction. This Essay examines those cases and the ways in which intuitively attractive results might be precluded by abandoning the distinction. Salvaging those results is possible, but only by deploying analytical moves that run athwart a constitutional “meta-doctrine,” which I call the “too much work” principle. In addition to contributing to understanding the coverage/protection distinction and the Court’s recent decisions, the Essay explains the role that meta-doctrines play in constitutional architecture more generally.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134491373","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"When is an Office or Public Trust 'Under the Commonwealth' for the Purposes of the Religious Tests Clause of the Australian Constitution?","authors":"Luke Beck","doi":"10.2139/SSRN.2798482","DOIUrl":"https://doi.org/10.2139/SSRN.2798482","url":null,"abstract":"The religious tests clause of s 116 of the Australian Constitution prohibits religious tests for any office or public trust ‘under the Commonwealth’. The few cases decided by the High Court concerning the religious tests clause, including most recently Williams v Commonwealth (‘School Chaplains Case’), provide no explanation of what the expression ‘under the Commonwealth’ might mean. This paper seeks to develop an interpretation of the expression ‘under the Commonwealth’ as it is used in the religious tests clause that is meaningful, avoids undesirable and perverse outcomes, reconciles the existing cases and is consistent with s 116’s drafting history. The paper argues that an office or public trust will be ‘under the Commonwealth’ for the purposes of the religious tests clause when the office or public trust stands in a familial relationship with the federal government, understood as encompassing not just its executive arm but also its legislative and judicial arms.The paper begins in part II by providing some general background to s 116. Part III outlines the approach adopted by this paper for determining the meaning of the expression ‘under the Commonwealth’. The paper then turns in part IV to identifying two potential meanings of the word ‘under’ based on the case law considering the religious tests clause and on a textualist analysis of the use of that word in various parts of the Constitution. In part V, the paper identifies various senses in which the religious tests clause might be using the term ‘the Commonwealth’ based on a textualist analysis of the use of that expression in various parts of the Constitution. Part VI considers the various possible interpretations of the expression ‘under the Commonwealth’ based on the possible permutations of the meanings of ‘under’ and ‘the Commonwealth’. It assesses whether each interpretation is meaningful, avoids undesirable and perverse outcomes, reconciles the existing cases and is consistent with s 116’s drafting history. Using these criteria, the paper comes to an interpretation by a process of elimination. Part VII of the paper offers some concluding remarks.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"68 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128822828","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Конституционная Ответственность Лиц, Занимающих Государственные Должности: Российский и Зарубежный Опыт (Constitutional Responsibility of Persons Holding Public Office: Russian and Foreign Experience)","authors":"I. A. Alzheev, Elena Boldyreva, E. Kameneva, О. И. Chepunov, A. Chepus","doi":"10.2139/SSRN.2665595","DOIUrl":"https://doi.org/10.2139/SSRN.2665595","url":null,"abstract":"Russian Abstract: Конституционная ответственность лиц, занимающих государственные должности как особая форма юридической ответственности, является мощным и надежным инструментом поддержания в государстве правового порядка, режима законности, защиты прав и свобод человека и гражданина, что является основополагающим условием укрепления и развития демократии в России, повышения эффективности функционирования институтов государственной власти в сложных условиях проводимых Российской Федерацией политических и социально-экономических реформ.English Abstract: Constitutional responsibility of persons holding public office as a special form of legal liability, is a powerful and reliable tool to maintain the state of the legal order, the regime of law, protection of rights and freedoms of man and citizen, which is a fundamental condition for the consolidation and development of democracy in Russia, improve the functioning of the institutions state power in difficult conditions carried out by the Russian Federation political and socio-economic reforms.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"241 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133418641","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Protecting the Watchdog: Using the Freedom of Information Act to Preference the Press","authors":"Erin C. Carroll","doi":"10.2139/SSRN.2552794","DOIUrl":"https://doi.org/10.2139/SSRN.2552794","url":null,"abstract":"The fourth estate is undergoing dramatic changes. Many newspaper reporters, already surrounded by a growing number of empty desks, are shifting their focus away from costly investigative reporting and towards amassing Twitter followers and writing the perfect “share line.” Newspapers’ budgets can no longer robustly support accountability journalism and pitching fights against the government. And so, while this busier and noisier media environment may have a desirable democratizing effect — more of us are able to participate in analyzing, debating, and perhaps even making the news — it has not succeeded in filling a role that print journalists have traditionally played well — keeping watch on the government. In order to perpetuate its historical role as watchdog, the fourth estate needs fortification. This fortification should come in the form of legal preferences for the press. Providing such preferences is not new, but it arguably has not been done in a significant way since postal subsidies were granted to newspapers in the colonial era. Today, with few exceptions, the law generally treats journalists just like any other citizens and news organizations like any other business. This article proposes a new way to preference the press — one that would not involve direct subsidies or discriminating between old media and new. Instead, it would give journalists a commodity that is fundamental to their work: information. To preference the press, this article looks to the Freedom of Information Act, the law governing when and how the executive branch discloses information to the public. While in theory the law facilitates the press’s access to vast amounts of information in the hands of the executive branch, implementation of FOIA has, since it was passed in 1966, been fraught with problems. Agencies routinely take months and even years to respond to journalists’ requests, making the process incompatible with a news cycle that is spinning ever faster. This article proposes focusing on FOIA’s expedited processing provisions to prioritize journalists’ requests over those of other requesters, expedite agency fulfillment of them, and ease the press’s ability to challenge late, incomplete, or otherwise unsatisfactory disclosures. It argues that any journalist filing a FOIA request seeking expedited processing should presumptively go to the front of the queue. At that point, there would be firm deadlines (where none exist now) for providing the journalist with the information requested. These small but significant changes to an already established provision of FOIA could help the media better serve as a watchdog at a time when that role needs protecting.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"2015 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127611103","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}