Hastings Law Journal最新文献

{"title":"Free Exercise and the Problem of Symmetry","authors":"N. Tebbe","doi":"10.31228/osf.io/s8xpc","DOIUrl":"https://doi.org/10.31228/osf.io/s8xpc","url":null,"abstract":"This Article identifies a difficulty with the neutrality paradigm that currently shapes thinking about the Free Exercise Clause both on the Supreme Court and among its leading critics. It proposes a liberty component, shows how it would generate more attractive results than neutrality alone, and defends the liberty approach against likely objections. A controversial neutrality rule currently governs cases brought under the Free Exercise Clause. Under that rule, only laws and policies that have the purpose of discriminating against religion draw heightened scrutiny. All others are presumptively constitutional, regardless of how severely they burden religious practices. Critics have attacked the Court's rule with compelling normative arguments. Curiously, though, the leading academic critics have not directed those arguments against neutrality itself. Rather, they have argued that the Court has adopted the wrong sort of neutrality principle. Instead of purposive neutrality, they call for substantive neutrality. That approach would closely scrutinize not only laws or policies that discriminate purposefully, but also those that have the incidental effect of disadvantaging religion. This Article points out a difficulty with the critics' proposal that it calls the problem of symmetry. In order to qualify as neutral, substantive neutrality must apply in the same way to laws that benefit religion as to laws that burden it. Neutralists could not apply strict substantive neutrality to laws that burden religion, but only the more permissive purposive neutrality to laws that benefit religion. That regime would not be neutral. It would systematically advantage religion in violation of evenhandedness. Some of the leading academic critics recognize that substantive neutrality must resist laws that favor religion as well as those that disfavor it. But many of their practical proposals seem to violate the symmetry constraint. Accommodations of religion, in particular, often have the effect of advantaging religious practices over comparable secular activities. For instance, the critics must strongly support the Religious Land Use and Institutionalized Persons Act, which applies strict scrutiny (as a statutory matter) to prison regulations that incidentally but substantially burden religious observance among inmates. The Supreme Court recently upheld that law even though it has the effect of advantaging sacred practices over analogous secular ones. The critics surely must applaud that result. Yet advantaging religious over secular practices is difficult to square with substantive neutrality. Liberty, in contrast to neutrality, is asymmetrical. It protects religious freedom regardless of whether doing so incidentally advantages observance over comparable secular practices. This Article argues that a liberty component is necessary to vindicate the critics' own normative intuitions concerning the proper role of religious freedom in American democracy.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2005-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69640651","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Lifting the Veil of Ignorance: Toward a Culturally Conscious Account of Human Rights for Women in Post-September 11 America","authors":"C. Powell","doi":"10.2139/ssrn.667463","DOIUrl":"https://doi.org/10.2139/ssrn.667463","url":null,"abstract":"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67789261","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Slaughter-House Five: Views of the Case","authors":"D. Bogen","doi":"10.2139/SSRN.452102","DOIUrl":"https://doi.org/10.2139/SSRN.452102","url":null,"abstract":"This article discusses five views of the Slaughter-House Cases: 1) that Justice Miller was deliberately ambiguous about whether the Bill of Rights is incorporated against the States by the Privileges and Immunities Clause of the Fourteenth Amendment; 2) that Justice Miller rejected incorporation through the Privileges and Immunities Clause; 3) that he adopted incorporation of the Bill of Rights in the Slaughter-House Cases; 4) that the Slaughter-House Cases should be reexamined and overturned by the modern court; and 5) that the Slaughter-House Cases should remain the way in which the privileges or immunities clause of the Fourteenth Amendment is interpreted. The article's main points are: 1. Recent revisionist scholars who argue that Justice Miller intended his opinion on privileges and immunities in the Slaughter-House Cases to support incorporation of the bill of rights are wrong. The smoking gun on this point is a letter written by Chief Justice Waite that thanks Miller for suggesting the Slaughter-House Cases as a citation in the Cruikshank opinion and for praising his opinion in that case. 2. Although the privileges or immunities clause of section one of the Fourteenth Amendment refers to preexisting rights and creates no new ones, it is not empty. As a point of reference for congressional power under section five, the clause makes a previously implicit congressional power express. 3. The congressional power to enforce section five does not rise above the scope of the privileges in section one. If the Court continues to find Congress has no power under Article I to create private rights of action against the states, the recognition that Article I statutes are privileges of citizenship will not bootstrap the power into overriding state sovereignty. 4. None of the alternative substantive readings urged for the privileges or immunities clause is satisfactory as a historical matter, in part because the framers had a variety of internally inconsistent views. They did intend the clause to have substance, but other clauses are better vehicles for providing that substance. 5. A shift from substantive due process to the privileges or immunities clause would be a mistake. The linguistic and precedential problems of existing doctrine are inherent in unenumerated rights and are not improved by switching clauses. Instead, switching clauses creates unwise risks of shrinking rights recognized by the present court or expanding them to areas with less support in history and policy. 6. A fundamental rights interpretation of the clause would shift power in traditionally local areas of contract, property and criminal law from the states to Congress. That would obliterate federalism, contrary to the intent of the drafters of the clause. Whether federalism should be obliterated is the crucial policy question. The article contends other clauses are adequate sources of power for Congress to deal with national problems, and federalism should remain an important val","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2003-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67735279","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"State Wiretaps and Electronic Surveillance After September 11","authors":"C. H. Kennedy, Peter P. Swire","doi":"10.2139/SSRN.416586","DOIUrl":"https://doi.org/10.2139/SSRN.416586","url":null,"abstract":"This article examines the changing landscape for wiretaps and other electronic surveillance at the state level in the wake of the events of September 11. Based on available statistics, over two-thirds of law enforcement wiretaps in the United States in 2001 were authorized by state rather than federal judges, and there is evidence of significant under-reporting of state wiretaps. Part I of the Article explains the constitutional and statutory framework for government interception of: the content of a communication (\"wiretaps\"); to/from information (such as phone numbers or e-mail addresses); and stored communications records. Appendix A to the Article provides a survey and analysis of the interception, to/from, and stored records laws for all 50 states. Appendix B provides a survey of proposed and enacted changes to state laws in the initial period from September 11, 2001 to June 1, 2002. This research was performed on behalf of the Liberty and Security Initiative of the Constitution Project. Part II analyzes the proposed and enacted changes following September 11. Legislation principally addressed these issues: expanding the list of offenses eligible for interception orders; expanding the list of officials with wiretap authority; expanding the categories of persons who may execute wiretaps; authorizing roving and statewide surveillance; and expanding the types of communications and devices subject to interception. The conclusions in Part III highlight the weaker internal and external controls that apply to wiretaps and other electronic surveillance at the state level. At a formal/legal level, the Electronic Communications Privacy Act (ECPA) does provide that state wiretap laws may have effect only if they meet federal minimum standards for nature of the offense, minimization, and other features. Based on our review of state laws, however, we consider it likely that state wiretaps are systematically less subject to training requirements and other institutional controls on prosecutorial and police discretion. External controls are also likely more substantial at the federal level. Academics, the press, advocacy groups, and Congressional oversight have all provided important checks on any temptation by federal officials to overstep the limits of their surveillance powers. These oversight efforts are less developed in most states, and our research on state laws is intended in part to facilitate better understanding of how these laws in fact operate. A separate implication of this research concerns the interplay of federal and state surveillance law. Passage of the USA-PATRIOT Act in 2001 focused essentially exclusively on the scope of surveillance powers appropriate for federal officials. The preemption provision in ECPA, however, means that a change in federal law also permits an equivalent change in state law. Many of the bills recently proposed mirror the reduction of privacy rights in the USA-PATRIOT Act. In considering changes to federal survei","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2003-09-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68714445","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Trustwrap: The Importance of Legal Rules to Electronic Commerce and Internet Privacy","authors":"Peter P. Swire","doi":"10.2139/SSRN.424167","DOIUrl":"https://doi.org/10.2139/SSRN.424167","url":null,"abstract":"This Article puts forward two claims and one proposed new term. The first claim, buttressed by new evidence in this Article, is that we have under-valued the importance of binding legal rules in promoting electronic commerce (\"E-Commerce\"). The second claim is that, in light of the demonstrated helpfulness of binding legal rules, the case for Internet privacy legislation in the United States is stronger than it was during the start-up period of E-Commerce during the 1990s. The new term, which is central to both of these claims, is the idea of \"trustwrap\" - the ways that merchants can wrap their transactions in visible, trust-inspiring ways when conducting E-Commerce. The idea of trustwrap arose for me in thinking about the Tylenol scare in the early 1980s, when cyanide was injected into bottles of the medicine. Johnson & Johnson responded by re-engineering every sale of Tylenol. Today, every bottle of pills has a plastic wrap around the outside of the bottle. Every bottle has a foil seal inside the cap. Inside the bottle, the medicine exists in tamper-proof caplets or tablets, rather than the earlier capsules into which the malicious person had injected the poison. I propose the term \"trustwrap\" to bring together the physical transactions of Tylenol and the virtual transactions of E-Commerce. For my proposed use of \"trustwrap\", the seller demonstrates in the course of the transaction that there are legal, technical, or other protections for the purchaser. Moreover, the term \"trustwrap\" invokes the \"shrinkwrap\" and \"clickwrap\" licenses of modern E-Commerce. Part I of this Article looks at three of the striking success stories of E-Commerce - the online credit card, the growth of \"clicks-and-bricks\" E-Commerce (companies that sell both on the web and in physical stores), and eBay. Each of these three success stories contrasts markedly with the predictions of the Internet pioneers of the mid-1990s. I argue that each success story has created effective trustwrap for online transactions. Notably, the trustwrap in each instance depends substantially on enforceable legal guarantees. This evidence from the success stories on the Internet shows at least a strong correlation with, and quite likely causation from, the sorts of legal enforcement that many observers thought would be irrelevant for Internet commerce. Part II of the Article explores the implications of Part I on the debate about Internet privacy legislation. Based on my own experience as privacy counselor for the Clinton Administration, the debates on Internet privacy have often asked whether a legislative or self-regulatory approach will be more effective at fostering trust and encouraging E-Commerce. The success stories in Part I undermine the common view that binding legal rules will interfere with E-Commerce. In addition, a careful examination of our experiences with Internet privacy suggests that legal protections for privacy are more likely to be beneficial now than they would have been d","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2003-09-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68743413","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Privacy Wrongs in Search of Remedies","authors":"J. Reidenberg","doi":"10.2139/SSRN.434585","DOIUrl":"https://doi.org/10.2139/SSRN.434585","url":null,"abstract":"The American legal system has generally rejected legal rights for data privacy and relies instead on market self-regulation and the litigation process to establish norms of appropriate behavior in society. Information privacy is protected only through an amalgam of narrowly targeted rules. The aggregation of these specific rights leaves many significant gaps and fewer clear remedies for violations of fair information practices. With an absence of well-established legal rights, privacy wrongs are currently in search of remedies. The American public is beginning to demand that data privacy violators be held accountable. In a recent survey, Internet users overwhelmingly called for sanctions ranging from jail time to blacklisting of organizations that failed to respect privacy policies. Public enforcement actions and private law suits in the United States are just emerging as an important force in the creation of adequate protection for citizens' personal information in American society. This Article first describes privacy rights and wrongs that frame the search for remedies in the United States. In particular, this section focuses on two different types of harm created by the misuse of personal information and the desire to find protective rights: personal or private wrongs and public or societal wrongs. Next this Federal Trade Commission and state Attorneys General have become important enforcers against personal wrongs, but their efforts fall short of accomplishing systematic change and fail to provide individual victims with any real remedy. The third part of this Article examines private claims for privacy wrongs. This section explores some tortured efforts to obtain redress for privacy violations and offers a few theories for unexploited and unexplored claims. Finally, this Article concludes with an instrumentalist view of the search for remedies. The current mismatch between privacy wrongs and remedies creates a destabilizing force that will ultimately push in favor of enhanced legal rights for data privacy.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2003-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68778402","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"German and U.S. Telecommunications Privacy Law: Legal Regulation of Domestic Law Enforcement Surveillance","authors":"P. Schwartz","doi":"10.2139/SSRN.425521","DOIUrl":"https://doi.org/10.2139/SSRN.425521","url":null,"abstract":"The legal systems of Germany and the United States contain detailed rules that regulate the surveillance of telecommunications by domestic law enforcement agencies. An initial question about this surveillance concerns the relative levels of such activity in Germany and the United States. This Article demonstrates, however, that the available statistics do not permit the drawing of conclusions about the relative amount of surveillance in the two countries. Any comparison based on these data sets proves to be illusory - the official statistics in Germany and the U.S. measure different phenomenon. Despite an absence of a basis for an empirical exploration of relative levels of telecommunications surveillance in Germany and the U.S., it is possible to compare the applicable legal regulations in the two countries. This Article examines both constitutional and statutory regulations. It finds that the U.S. Supreme Court has developed a restrictive vision of the Fourth Amendment that extends its protections only to telecommunications content, but not telecommunications attributes. In contrast, the German Federal Constitutional Court has interpreted Article 10 of the Basic Law, the postwar German constitution, as protecting not only telecommunications content but also telecommunications attributes. This Article also examines the statutory law that governs telecommunications surveillance in Germany and the U.S. It evaluates six categories: (1) legal protection for telecommunications information; (2) legal protection for connection data; (3) legal protection for stored data; (4) legal requirements for data retention or data erasure; (5) legal protection for contents of telecommunications; and (6) the nature of available remedies. In a final section, this Article examines three possible \"X factors,\" beyond the surveillance regulations expressed in legal regulations, that may affect law enforcement behavior in carrying out telecommunications surveillance in the two countries.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2003-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.425521","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68749420","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Marital Immunity, Intimate Relationships, and Improper Inferences: A New Law on Sexual Offenses by Intimates","authors":"Michelle Anderson","doi":"10.2139/SSRN.439504","DOIUrl":"https://doi.org/10.2139/SSRN.439504","url":null,"abstract":"Today, to one degree or another, marital immunity for sexual offenses persists in over half the states. Underlying the marital rape immunity has been the assumption that when a woman enters into a marriage, she is giving her ongoing consent to sexual intercourse. Professor Michelle Anderson argues that states must abolish this immunity to make the law formally neutral on the marital status of the parties. However, Professor Anderson argues, such formal neutrality is insufficient. The ideology of ongoing consent underlying the marital rape immunity has infected the way the legal system treats sexual offenses among intimates who are not married. The legal system often assumes that ongoing consent also exists between non-married intimates. Professor Anderson argues against the ideology of ongoing consent in both settings and proposes a new, single rule: evidence of a past or continuing sexual relationship between the complainant and the defendant is not itself a defense to a criminal sexual offense and, by itself, does not prove consent to the sexual act.","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2003-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.439504","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68787597","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Identity Theft, Privacy, and the Architecture of Vulnerability","authors":"Daniel J. Solove","doi":"10.2139/SSRN.416740","DOIUrl":"https://doi.org/10.2139/SSRN.416740","url":null,"abstract":"This Article contrasts two models for understanding and protecting against privacy violations. Traditionally, privacy violations have been understood as invasive actions by particular wrongdoers who cause direct injury to victims. Victims experience embarrassment, mental distress, or harm to their reputations. Privacy is not infringed until these mental injuries materialize. Thus, the law responds when a person's deepest secrets are exposed, reputation is tarnished, or home is invaded. Under the traditional view, privacy is an individual right, remedied at the initiative of the individual. In this Article, Professor Solove contends the traditional model does not adequately account for many of the privacy problems arising today. These privacy problems do not consist merely of a series of isolated and discrete invasions or harms, but are systemic in nature. They cannot adequately be remedied by individual rights and remedies alone. In contrast, Professor Solove proposes a different model for understanding and protecting against these privacy problems. Developing the notion of \"architecture\" as used by Joel Reidenberg and Lawrence Lessig, Solove contends that many privacy problems must be understood as the product of a broader structural system which shapes the collection, dissemination, and use of personal information. Lessig and Reidenberg focus on \"architectures of control,\" structures that function to exercise greater dominion over individuals. Solove argues that in addition to architectures of control, we are seeing the development of \"architectures of vulnerability,\" which create a world where people are vulnerable to significant harm and are helpless to do anything about it. Solove argues that protecting privacy must focus not merely on remedies and penalties but on shaping architectures. Professor Solove illustrates these points with the example of identity theft, one of the most rapidly growing types of criminal activity. Identity theft is often conceptualized under the traditional model as the product of disparate thieves and crafty criminals. The problem, however, has not been adequately conceptualized, and, as a result, enforcement efforts have been misdirected. The problem, as Solove contends, is one created by an architecture, one that creates a series of vulnerabilities. This architecture is not created by identity thieves; rather, it is exploited by them. It is an architecture of vulnerability, one where personal information is not protected with adequate security. The identity thief's ability to so easily access and use our personal data stems from an architecture that does not provide adequate security to our personal information and that does not afford us with a sufficient degree of participation in the collection, dissemination, and use of that information. Understanding identity theft in terms of architecture reveals that it is part of a larger problem that the law has thus far ignored. Solove then discusses solutions to the id","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2003-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.416740","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68714890","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Consent forms as part of the informed consent process: moving away from \"medical Miranda\".","authors":"Victor Ali","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":46736,"journal":{"name":"Hastings Law Journal","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2003-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24567876","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}