LSN: Rights & Liberties (Topic)最新文献

{"title":"The New American Debtors' Prisons","authors":"C. Hampson","doi":"10.2139/SSRN.2639709","DOIUrl":"https://doi.org/10.2139/SSRN.2639709","url":null,"abstract":"State by state, Americans abolished imprisonment for debt in the first half of the nineteenth century. In forty-one states, the abolition of debtors’ prisons eventually took the form of constitutional bans. But debtors’ prisons are back, in the form of imprisonment for nonpayment of criminal fines, fees, and costs. While the new debtors’ prisons are not historically or doctrinally continuous with the old, some aspects of them offend the same pragmatic and moral principles that compelled the abolition of the old debtors’ prisons. Indeed, the same constitutional texts that abolished the old debtors’ prisons constitute checks on the new today. As the criminal law literature grapples with debtors’ prisons through more traditional doctrinal avenues this Article engages with the metaphor head-on and asks how the old bans on debtors’ prisons should be interpreted for a new era of mass incarceration.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130087923","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":"Privacy, Identification, and Common Law Names","authors":"Adam Candeub","doi":"10.2139/SSRN.2634592","DOIUrl":"https://doi.org/10.2139/SSRN.2634592","url":null,"abstract":"The conventional wisdom, reflected in legal policy analysis and landmark Supreme Court cases such as Kyllo and Jones, views technology as privacy’s chief foe. This Article challenges that wisdom, arguing that the law of identification is privacy’s real threat. Particularly in the last decade, legal requirements for identification through government-issued identification cards in virtually every aspect of life — from online purchases to healthcare — have proved fatal to anonymity and privacy. This slow, subtle transformation has rendered a de facto nullity the Constitution’s anonymity protection against compelled identity disclosure. This transformation also has rendered impracticable the traditional, but mostly forgotten, common law rights to use whatever name one wishes, i.e., the right to pseudonymity. The common law name allows a type of anonymity, which, in turn, allows online privacy and privacy in other aspects of life. This Article argues that the continued vitality of common law name rights, particularly in light of recent First Amendment jurisprudence, establishes a right to pseudonymity — as well as the possibility of increasing privacy. This right includes, in certain circumstances, the ability to demand a government-issued identification under a common law pseudonym. This ability would allow individuals to frustrate regulatory identification regimes and regain some privacy. Beyond these practical implications, this Article engages in a theoretical analysis of the legal mechanisms of identification. Using the classic Calabresi-Melamed property/liability distinction, this Article demonstrates how name governance changed from the common law liability regime to the current government-owned property regime. This shift reflects an important, and hitherto unrecognized, transformation in the legal relationship between the state and citizen.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-07-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125466812","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":"Data Control and Digital Regulatory Space(s): Towards a New European Approach","authors":"R. Radu, Jean-Marie Chenou","doi":"10.14763/2015.2.370","DOIUrl":"https://doi.org/10.14763/2015.2.370","url":null,"abstract":"Data control, among the newest forms of power fostered by information and communication technologies (ICTs), triggers a continuous (re)negotiation of public and private orderings, with direct implications on both regulators and intermediaries. This article examines the stance of the European Union (EU) regarding the position of Google - the world’s largest internet services company as per its 2014 market value - in two controversial instances: the ‘right to be forgotten’ and the implementation of EU competition rules. It provides an analysis of these evolving debates and their meaning for EU regulatory thrust more broadly, discussing the shift in the approach to digital markets and the proactive development of a European framework influential beyond continental boundaries.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"150 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127519044","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":"Limitations of Fundamental Rights in the Czech Republic and the Role of the Principle of Proportionality","authors":"Pavel Ondřejek","doi":"10.54648/euro2014031","DOIUrl":"https://doi.org/10.54648/euro2014031","url":null,"abstract":"One of the most substantial issues relating to the protection of fundamental rights is seen in searching for a balance between those rights and the public interests of the society. Different conceptions have been developed attempting to determine the modes of resolving this conflict under constitutional law; however, none of these conceptions has been spread in such an extensive manner as the principle of proportionality has.The principle of proportionality has been debated intensively in contemporary jurisprudence, as it is perceived as a modern method of constitutional reasoning, determining what limitation of a fundamental right may be considered in conformity with the constitution and what may not.This article is to deal with these issues and to outline a historical and contemporary application of the proportionality principle in the Czech Republic.Part One will introduce various contexts of proportionality in law and their consequences for the formation of the principle of proportionality in legal doctrine after WWII and the case-law of the Federal Republic of Germany. Part Two will outline the circumstances under which the proportionality principle became one of the most significant methods of constitutional reasoning in the Czech Republic. The final part will be devoted to emphasizing the proportionality principle as a neutral principle in constitutional law and to a variable intensity of its review.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126222358","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":"In Defense of Disparate Impact: Urban Redevelopment and the Supreme Court's Recent Interest in the Fair Housing Act","authors":"Valérie Schneider","doi":"10.2139/SSRN.2447787","DOIUrl":"https://doi.org/10.2139/SSRN.2447787","url":null,"abstract":"Twice in the past three years, the Supreme Court has granted certiorari in Fair Housing cases, and, each time, under pressure from civil rights leaders who feared that the Supreme Court might narrow current Fair Housing Act jurisprudence, the cases settled just weeks before oral argument. Settlements after the Supreme Court grants certiorari are extremely rare, and, in these cases, the settlements reflect a substantial fear among civil rights advocates that the Supreme Court’s recent decisions in cases such as Shelby County v. Holder and Fisher v. University of Texas are working to dismantle many of the protections of the Civil Rights legislation of the 1960s. The sole issue in both of the recently settled Fair Housing Act cases was whether disparate impact analysis – a type of analysis that some on the Supreme Court may view as requiring racial preferences – is valid under the Fair Housing Act. This article argues that in order to have a chance at achieving the goal of its sponsors – “to replace the ghettos [with] truly integrated and balanced living patterns,” – the Fair Housing Act cannot just take aim at the aberrant individual who intentionally denies a person housing because of his or her race. Instead, the Fair Housing Act must recognize claims based on disparate impact analysis alone. This article argues that disparate impact analysis is especially needed to address urban redevelopment decisions because such decisions are often made through a multi-party protracted process, in which a discriminatory intent may be impossible to discern or entirely absent. Additionally, it is the outcome of large-scale urban redevelopment projects that will truly shape racial housing patterns in the twenty-first century.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117203287","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 Presumption of Proportionality","authors":"J. Rivers","doi":"10.1111/1468-2230.12072","DOIUrl":"https://doi.org/10.1111/1468-2230.12072","url":null,"abstract":"This article challenges the assumption that the burden of demonstrating that a limitation of a fundamental right is proportionate rests on the public authority seeking to justify the limitation. After considering the operation of burdens and presumptions in European human rights case‐law it notes the difficulties British domestic courts have had in rigorously applying proportionality tests. It suggests that the concerns which lead judges to weaken the requirement of proportionality would be better met by recognising that certain circumstances give rise to a presumption of proportionality, where the burden of demonstrating disproportionality rests on the right‐holder. Five categories of case in which this applies are proposed, and one which has recently been judicially accepted is rejected. Clarifying the types of case in which a presumption of proportionality applies is a preferable strategy to blurring the standards of justification to be met by those seeking to limit the enjoyment of rights.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"276 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124448548","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":"A New First Amendment Goal Line Defense – It's Time to Stop the Right of Publicity Offensive","authors":"M. Conrad","doi":"10.2139/SSRN.2346985","DOIUrl":"https://doi.org/10.2139/SSRN.2346985","url":null,"abstract":"The licensing agreements involving the NCAA and digital video firms for the use of avatars that have some resemblance to former college players have resulted in three separate cases challenging the validity of those agreements and the uses of athlete likenesses. O’Bannon v. NCAA, Hart v. EA and Keller v. NCAA. Although O’Bannon has received the most publicity and involves potentially viable antitrust issues, the other two cases -- although less publicized -- may have significant effect on the future and scope of the law of the right of publicity. It is my contention that the use of the right of publicity doctrine to address the inequities between college athletes and the NCAA is incorrect and the gradual expansion of the scope of the property right creates serious First Amendment concerns. The article proposed a nationalized test for right of publicity claims that will pre-empt the myriad tests creates by different courts in different jurisdictions into a qualified immunity standard based on commercial speech protections under the First Amendment. Simply put, parties claiming right of publicity would have to establish a direct commercial use of their name, image and likeness to defeat a presumption of constitutional protection in the use of such speech.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"84 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130945539","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 System of Modern Criminal Conspiracy","authors":"S. Morrison","doi":"10.2139/SSRN.1955158","DOIUrl":"https://doi.org/10.2139/SSRN.1955158","url":null,"abstract":"Something has changed in the modern system of American criminal conspiracy law compared to its prior iterations. This article explores that change, arguing that the system of modern criminal conspiracy now gives to the government such great discretion to charge and prove a conspiracy that unpopular ideas and the speech that expresses them have become ready subjects of prosecution.At its center, this article defines the system of modern conspiracy law, which is one of uniformity rather than dynamism. Where dynamic systems of law contain distinct components that perform different tasks (proving actus reus and mens rea, for example), the uniform system of conspiracy law permits virtually all types of evidence to be admitted to prove all of conspiracy’s elements, with almost nonexistent evidentiary and constitutional rules to limit this admission. The result is elision of important normative, constitutional, and evidentiary rules designed to ensure both outcome reliability and individuals’ rights.This article provides a history of conspiracy law that illustrates the law’s qualitative and quantitative expansion toward its modern iteration. That history begins in 1285 England, when conspiracy was limited to agreements to falsely prosecute another and could be charged only where the victim was in fact prosecuted and acquitted. I call this type of conspiracy specific and consequentialist. During its subsequent evolution, the law became what I call general in that it applied to agreements to commit any crime whatsoever and deontological because the substantive target crime no longer had to have been achieved — the conspiracy itself became unmoored from its factual context and a crime. The 18th and 19th century Hawkins and Denman doctrines introduced a moral aspect to conspiracy — condemning agreements that aimed at “wrongful” conduct as much as criminal conduct. The ultimate result was the uniform system of modern conspiracy.This article also provides four normative reforms that respond to conspiracy’s systemic uniformity. These reforms are grounded in extant law on conspiracy, treason, and, because speech is the primary type of proof, First Amendment law. These reforms are meant to create dynamism in the system, which should serve both accurate outcomes and defendants’ rights.It is important to understand the current system of criminal conspiracy both because of its pervasive use in prosecutions and the growing consensus that the law targets unpopular ideas and speech and produces erroneous outcomes. Now more than ever, reforms to the system of criminal conspiracy are necessary to ensure a legitimate criminal justice system that protects individual rights and ensures reliable outcomes.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114189511","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":"Sometimes You Have to Go Backwards to Go Forwards: Judicial Review and the New National Security Exception to the Fourth Amendment","authors":"Sheerin N. S. Haubenreich","doi":"10.2139/SSRN.1097387","DOIUrl":"https://doi.org/10.2139/SSRN.1097387","url":null,"abstract":"National security concerns have historically provided a strong basis for non-justiciable Executive Branch action; however, post 9/11, such actions have grown to encompass a greater number of American citizens' civil liberties. The federal judiciary's deferential treatment of national-security related conduct, particularly in the realm of suspicionless searches, occurs with dangerous frequency, and any semblance of meaningful review has been nearly eviscerated. The stakes involved in national security are weighty and, in many instances, present the courts with an artificial choice: uphold a potentially over-zealous suspicionless-search program but avoid danger, or strike down such a program in favor of civil liberties only to risk causing mass tragedy. Instead of being confined to two extreme choices, the courts should instead implement a more robust review process akin to the federal courts' institutional reform practice in the school desegregation and prison reform cases, which would allow remedial flexibility with programs that are constitutionally problematic. Using the suspicionless-search program instituted in July 2005 by the New York City Police Department as a sample, this paper demonstrates the way in which the courts could structure such remedial decrees to monitor and maintain a program's constitutionality. In lieu of creating yet another exception to the Fourth Amendment, the federal courts should heed the lessons from their own experience to avoid the potentially limitless extension of a new national security exception into civil liberties.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"114 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123298148","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 Puzzle of Ivf","authors":"D. Davis","doi":"10.2139/ssrn.887784","DOIUrl":"https://doi.org/10.2139/ssrn.887784","url":null,"abstract":"This essay seeks to address a puzzling element of the current political and legal struggles over abortion in the United States: if, as pro-life activists insist, embryos are morally equivalent to born, living persons, then why do these activists not oppose in vitro fertilization (IVF) as aggressively as they oppose abortion? IVF accounts for a significant number of destroyed embryos. Constitutionally, IVF appears to be a much more vulnerable target than abortion. And yet, legislative and political attempts to attack and restrict IVF are few, while attempts to erode women's capability to terminate pregnancies are a constant feature of our political and legal landscape.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122873137","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}