Emory law journal最新文献

Emory law journal Pub Date : 2020-01-07 DOI: 10.2139/ssrn.3630429

Frank J. Vandall

引用次数: 0

Emory law journal Pub Date : 2019-02-04 DOI: 10.2139/SSRN.3119383

J. Nash

{"title":"National Personal Jurisdiction","authors":"J. Nash","doi":"10.2139/SSRN.3119383","DOIUrl":"https://doi.org/10.2139/SSRN.3119383","url":null,"abstract":"Personal jurisdiction has always constrained plaintiffs’ access to courts; recent Supreme Court decisions impose even more severe limits, especially in suits against nonresident foreign corporations. These limitations are magnified by the standard understanding that the relevant forum for purposes of the personal jurisdiction calculus is the state. The Court’s Fourteenth Amendment jurisprudence relies on the state as the relevant forum, and the Federal Rules of Civil Procedure in the typical case direct a federal court to apply the same test as would a court of the state in which it sits. \u0000 \u0000This Article takes on the challenge of exploring the possibility of expanding the use of national personal jurisdiction, and thus revitalizing plaintiffs’ access to courts. In so doing, it undertakes three distinct tasks. First, it argues first that there is no Fifth Amendment Due Process barrier to national personal jurisdiction. Second, it considers the viability of national personal jurisdiction as to various categories of claims, brought in federal court and state court. It argues that Congress has the power to introduce national personal jurisdiction as to all claims brought in the federal courts, but that Congress lacks authority to introduce national personal jurisdiction as to any claims brought in the state courts. However, Congress could open the federal courthouse doors wider to claims where national personal jurisdiction is deemed appropriate. Third, the Article considers what steps Congress is free to utilize in order to implement national personal jurisdiction. While two steps are obvious—Congress can enact statutory authority and can convey authority on a delegate—the Article focuses on a more controversial path to national personal jurisdiction: the common law. It argues that, while federal courts may enjoy interstitial common-law powers in this area, they likely do not have broad powers to generate new instances of national personal jurisdiction.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"68 1","pages":"509"},"PeriodicalIF":0.0,"publicationDate":"2019-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43176424","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}

引用次数: 1

Partisan Gerrymandering and the Constitutionalization of Statistics 党派不公正的选区划分与统计的宪法化

Emory law journal Pub Date : 2018-03-21 DOI: 10.2139/SSRN.3145191

Jacob Eisler

{"title":"Partisan Gerrymandering and the Constitutionalization of Statistics","authors":"Jacob Eisler","doi":"10.2139/SSRN.3145191","DOIUrl":"https://doi.org/10.2139/SSRN.3145191","url":null,"abstract":"Data analysis has transformed the legal academy and is now poised to do the same to constitutional law. In the latest round of partisan gerrymandering litigation, lower courts have used quantitative tests to define rights violations and strike down legislative districtings across the country. The Supreme Court’s most recent opinion on partisan gerrymandering, Gill v. Whitford, hinted that quantitative tests may yet define the constitutionality of partisan gerrymandering. Statistical thresholds thus could be enshrined as constitutional protections and courts recast as agents of discretionary policy.This Article describes how excessive dependence on metrics transforms judicial decision-making and undermines rights enforcement. Courts enforce constitutional law to ensure governmental compliance with rights, not to advance alternative policy arrangements. Yet the core of rights is moral principle, not descriptive conditions in the world. If quantitative outcomes are used to define rights, the moral character of judicial rights enforcement is undermined, and courts act as quasi-regulatory entities that compete with democratically elected branches. Arguably the most condemned decision of the twentieth century, Lochner, reflected such a quasi-regulatory approach to rights enforcement; excessive reliance on statistics threatens to repeat that mistake.The law of partisan gerrymandering needs a new principle, not new metrics. The best principle to identify partisan gerrymandering is the right to fair representation, which is violated when legislatures seize partisan advantage in democratic process. Quantitative analysis should have the sole function of proving that alleged partisan gerrymanders seek such advantage.This Article thus identifies a novel and troubling trend in constitutional law and describes how it dominates a topic of immediate practical importance. It then offers a general framework for conceptualizing rights protection and applies it to this pressing doctrinal issue.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"68 1","pages":"979"},"PeriodicalIF":0.0,"publicationDate":"2018-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46951560","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}

引用次数: 1

THE CASE FOR STREAMLINING EMERGENCY DECLARATION AUTHORITIES AND ADAPTING LEGAL REQUIREMENTS TO EVER-CHANGING PUBLIC HEALTH THREATS. 精简紧急状态宣布机构和调整法律要求以适应不断变化的公共卫生威胁。

Emory law journal Pub Date : 2017-01-01

Gregory Sunshine

引用次数: 0

Biometric Cyberintelligence and the Posse Comitatus Act 生物识别、网络智能和团体委员会法案

Emory law journal Pub Date : 2016-12-16 DOI: 10.2139/SSRN.2886575

Margaret Hu

{"title":"Biometric Cyberintelligence and the Posse Comitatus Act","authors":"Margaret Hu","doi":"10.2139/SSRN.2886575","DOIUrl":"https://doi.org/10.2139/SSRN.2886575","url":null,"abstract":"This Article addresses the rapid growth of what the military and intelligence community refer to as “biometric-enabled intelligence.” This newly emerging intelligence system is reliant upon biometric databases — for example, digitalized collections of scanned fingerprints and irises, digital photographs for facial recognition technology, and DNA. This Article introduces the term “biometric cyberintelligence” to describe more accurately the manner in which this new tool is dependent upon cybersurveillance and big data’s mass-integrative systems.To better understand the legal implications of biometric cyberintelligence, this Article advances three primary claims. First, it argues that the technological and programmatic architecture of biometric cyberintelligence can be embedded within the data collection and data analysis protocols of civilian governance and domestic law enforcement activities. Next, to demonstrate the potential lethality of this emerging technological and policy development, this Article illustrates how biometric data may be increasingly integrated into drone weaponry, including targeted killing and drone strike technologies. Finally, this Article argues that the Posse Comitatus Act of 1878, designed to limit the deployment of federal military resources in the service of domestic policies, may be impotent in light of the growth of cybersurveillance.Maintaining strict separation of data between military and intelligence operations on the one hand, and civilian, homeland security, and domestic law enforcement agencies on the other hand, is increasingly difficult as cooperative data sharing increases. The Posse Comitatus Act and constitutional protections such as the Fourth Amendment’s privacy jurisprudence, therefore, must be reinforced in the digital age in order to appropriately protect citizens from militarized cyberpolicing, i.e., the blending of military/foreign intelligence tools and operations and homeland security/domestic law enforcement tools and operations. The Article concludes that, as of yet, neither statutory nor constitutional protections have evolved sufficiently to cover the unprecedented surveillance harms posed by the migration of biometric cyberintelligence from foreign to domestic use.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"66 1","pages":"697"},"PeriodicalIF":0.0,"publicationDate":"2016-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68418170","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}

引用次数: 2

Freedom from Thought 摆脱思想的自由

Emory law journal Pub Date : 2016-02-08 DOI: 10.1056/nejm196202152660715

Jane R. Bambauer

引用次数: 0

How Both the Eu and the U.S. Are "Stricter" Than Each Other for the Privacy of Government Requests for Information 欧盟和美国如何在政府信息请求隐私方面比对方“更严格”

Emory law journal Pub Date : 2016-01-01 DOI: 10.2139/SSRN.2920748

Peter P. Swire, DeBrae Kennedy-Mayo

{"title":"How Both the Eu and the U.S. Are \"Stricter\" Than Each Other for the Privacy of Government Requests for Information","authors":"Peter P. Swire, DeBrae Kennedy-Mayo","doi":"10.2139/SSRN.2920748","DOIUrl":"https://doi.org/10.2139/SSRN.2920748","url":null,"abstract":"Law enforcement access to personal data presents a paradox at the heart of debates between the European Union (EU) and the United States about privacy protections. On the one hand, the comprehensive privacy regime in the EU contains many requirements that do not apply in the United States-the EU is \"stricter\" than the United States in applying requirements that do not exist in the latter. On the other hand, the United States also sets requirements that do not exist in the EU, such as the Fourth Amendment requirement that a warrant be signed by a judge upon a finding of probable cause. Thus, both are stricter in important ways when setting standards for law enforcement access to personal data. The fact that both sides are stricter in significant respects is important to two distinct topics: how to reform the system of Mutual Legal Assistance (MLA), and whether the United States provides \"adequate\" protection for personal data under EU law, and thus is an appropriate destination for data flows from the EU.The relative strictness of standards for law enforcement access is central to understanding current obstacles to reforming the MLA system, the mechanism for sharing law enforcement evidence held in one country for use in criminal investigations in a different country. Our research team has been writing a series of articles about MLA reform.1 The topic has become increasingly important in recent years-globalized communications mean that e-mails, social network data, and other evidence for criminal investigations are often held in a different country. In the course of studying obstacles to effective reform, we have come to believe that the fact that both the EU and the United States provide stricter privacy protections is salient but little understood-each side is reluctant to compromise on a new approach to the extent that there would be a weakening of some specific safeguards that currently exist in their respective jurisdictions. We hope that a fuller understanding of the relative strictness of both sides will enable a more fruitful discussion of possible paths to MLA reform.The relative strictness of both the EU and the United States is also important to a second topic, the current litigation and debates about whether the United States provides \"adequate\" protection of privacy, and thus is a lawful destination for flows of personal data from the EU.2 Under the EU Data Protection Directive, which went into effect in 1998,3 transfers of personal data from EU Member States to other countries, such as the United States, are generally permitted only if the recipient jurisdiction has \"adequate\" protections.4 From its negotiation in 2000 until 2015, a major legal basis for such transfers was the EU/U.S. Safe Harbor, under which participating companies could lawfully send personal data to the United States.5 In 2015, the European Court of Justice struck down the Safe Harbor for lacking adequacy in Schrems v. Data Protection Commissioner.6 A related tran","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"66 1","pages":"617"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68432441","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}

引用次数: 3

Severability as Conditionality 可分割性即条件性

Emory law journal Pub Date : 2014-02-21 DOI: 10.2139/SSRN.2395650

Eric S. Fish

{"title":"Severability as Conditionality","authors":"Eric S. Fish","doi":"10.2139/SSRN.2395650","DOIUrl":"https://doi.org/10.2139/SSRN.2395650","url":null,"abstract":"The Supreme Court currently operates under the premise that if it finds one part of a law unconstitutional, it can strike down other parts as well. In NFIB v. Sebelius, four justices would have exercised this power to strike down the entire Affordable Care Act on the basis of one unconstitutional provision. But it is not clear where the Court finds this power to declare laws inseverable. And that lack of clarity has created a doctrinal muddle wherein the Court applies several inconsistent tests. In this Article, I seek to clarify the scope of the inseverability power by considering several different theories of its source. Three such theories are implicit in the current judicial doctrine and academic debate about severability: (1) that it is an equitable remedial power, akin to the power to issue a civil injunction, (2) that it is a form of intentionalist statutory interpretation, wherein courts strike down further provisions of a partially unconstitutional law so as to preserve the legislators’ intentions, and (3) that it is a judicial contract remedy applied to legislative deals. The Article explores these three theories, teasing out their respective logics, and showing that they are all both implausibly broad and inconsistent with Article III of the Constitution. The Article then develops and defends a fourth, narrower theory: that a court can declare a statute inseverable only where the legislature has made one part of the statute conditional on the continued validity of another. Such conditionality can most easily be found through explicit inseverability clauses. But it can also be found implicitly, where severing a provision would make nonsense of a statute’s language, or where otherwise valid parts of a statute cannot have legal effect or do not serve any purpose without the unconstitutional provision. The main cost of this theory is that it only permits inseverability in limited circumstances, and does not allow courts to rewrite statutes so as to avoid the perverse consequences of judicial review. The benefits are that the theory is consistent with Article III, and that it prevents judges from acting like legislators. Two further implications follow from the conditionality theory: that there must be a party with standing to challenge an inseverable provision before a federal court can strike it down; and that the proper unit of analysis for severability questions is the entire legislative code (rather than a single act or bill).","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"349 1","pages":"1293"},"PeriodicalIF":0.0,"publicationDate":"2014-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68177747","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}

引用次数: 11

The Contingent Fourth Amendment 偶然的第四修正案

Emory law journal Pub Date : 2014-02-10 DOI: 10.2139/SSRN.2366486

M. Mannheimer

{"title":"The Contingent Fourth Amendment","authors":"M. Mannheimer","doi":"10.2139/SSRN.2366486","DOIUrl":"https://doi.org/10.2139/SSRN.2366486","url":null,"abstract":"In the past forty years, the U.S. Supreme Court has increasingly advanced the notion that the Fourth Amendment encompasses the common-law restrictions on searches and seizures that existed in 1791 when the Amendment was adopted. Yet, in case after case, the Court has encountered indeterminacy in the common law circa 1791. At times, the Court confronts this indeterminacy by concluding that, in the absence of a clear common-law rule, the Fourth Amendment does not govern the issue. At other times, in the face of indeterminacy, the Court falls back upon general Fourth Amendment principles. And on occasion the Court pretends that the indeterminacy does not exist. The reason for the absence of clear common-law search-and-seizure rules in 1791 is that the common law differed in important respects among the thirteen new American States. More importantly, the Anti-Federalists, those who demanded that the Bill of Rights be added to the Constitution as the price of ratification, recognized that the common law was different in every State. This differentiated common law included the common-law rights of Englishmen secured by state bills of rights. The Anti-Federalists saw the common-law, not as a fixed set of rules they were freezing in time, but as fluid, contingent, and evolving around them. Thus, if the Court is going to continue to interpret the Fourth Amendment as incorporating common-law search-and-seizure rules, it must come to terms with the fact that the common law of 1791 was viewed by a significant part of the population as contingent rather than fixed. And given that we owe the Bill of Rights to the Anti-Federalists, it makes some sense to interpret its commands in light of their view of the common law. This Article introduces a view of the Fourth Amendment – the contingent Fourth Amendment – that courts and commentators have overlooked. It asserts that we ought to conceive of our rights against unreasonable searches and seizures by federal officials as being largely contingent on state law. The only common-law rules that the Fourth Amendment freezes into the Constitution are those explicitly set forth in the Warrant Clause: rules against warrants that are general, issued on less than probable cause, or unsupported by oath or affirmation. The residuum of constitutional search-and-seizure rules are to be dictated by state law, even when it is a federal officer doing the searching or seizing. On this approach, as a matter of federal constitutional law, a federal officer is generally constrained by the search-and-seizure law of the State where a federal search or seizure occurs.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"64 1","pages":"1229"},"PeriodicalIF":0.0,"publicationDate":"2014-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68144821","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}

引用次数: 0

Students, Security, and Race 学生、安全与种族

Emory law journal Pub Date : 2013-07-24 DOI: 10.2139/SSRN.2214202

Jason P. Nance

{"title":"Students, Security, and Race","authors":"Jason P. Nance","doi":"10.2139/SSRN.2214202","DOIUrl":"https://doi.org/10.2139/SSRN.2214202","url":null,"abstract":"In the wake of the terrible shootings in Newtown, Connecticut, our nation has turned its attention to school security. For example, several states have passed or are considering passing legislation that will provide new funding to schools for security equipment and law enforcement officers. Strict security measures in schools are certainly not new. In response to prior acts of school violence, many public schools for years have relied on metal detectors, random sweeps, locked gates, surveillance cameras, and law enforcement officers to promote school safety. Before policymakers and school officials invest more money in strict security measures, this Article provides additional factors that should be considered. First, drawing on recent, restricted data from the U.S. Department of Education, this Article presents an original empirical analysis revealing that low-income students and minority students are much more likely to experience intense security conditions in their schools than other students, even when taking into account neighborhood crime, school crime, and school disorder. These findings raise concerns that such inequalities may continue or worsen as policymakers provide additional funding for security measures. Second, this Article argues that strict security measures do not support long-term solutions needed to effectively prevent school violence. Indeed, strict security measures exacerbate the underlying problems by creating barriers of adversity and mistrust between students and educators. In addition, this Article offers recommendations to address the disproportionate use of security measures on low-income and minority students and to curb violence more effectively. It urges school officials and policymakers to support programs that build trust and collective responsibility instead of providing grants for strict security measures. Further, it recommends that the Department of Education’s Office of Civil Rights play a more active role in addressing the disproportionate use of strict security measures on minority students.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"63 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2013-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2214202","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67997231","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}

引用次数: 16