Central to understanding biometric privacy is the question of biometric privacy harms. How much do people value biometric privacy, and what evils should biometric privacy laws seek to avert? This Article addresses these questions by surveying two nationally representative samples to determine what does, and does not, worry people in the context of biometrics. The results show that many people are deeply concerned about biometric privacy in the consumer context; that they are willing to sacrifice real benefits to preserve biometric privacy; and that those who are concerned with biometric privacy attribute their concern to many factors that are not directly related to data security, particularly public tracking. Further, people’s level of comfort with biometric data collection differs sharply depending on the uses to which the data will be put and not just on the type of data collected. These nuanced attitudes about biometric privacy are in sharp conflict with a purely data security approach to biometric harms, and therefore have substantial implications both for future legislative consideration as well as current class action litigation.
{"title":"From Identification to Identity Theft: Public Perceptions of Biometric Privacy Harms","authors":"Matthew B. Kugler","doi":"10.2139/SSRN.3289850","DOIUrl":"https://doi.org/10.2139/SSRN.3289850","url":null,"abstract":"Central to understanding biometric privacy is the question of biometric privacy harms. How much do people value biometric privacy, and what evils should biometric privacy laws seek to avert? This Article addresses these questions by surveying two nationally representative samples to determine what does, and does not, worry people in the context of biometrics. The results show that many people are deeply concerned about biometric privacy in the consumer context; that they are willing to sacrifice real benefits to preserve biometric privacy; and that those who are concerned with biometric privacy attribute their concern to many factors that are not directly related to data security, particularly public tracking. Further, people’s level of comfort with biometric data collection differs sharply depending on the uses to which the data will be put and not just on the type of data collected. These nuanced attitudes about biometric privacy are in sharp conflict with a purely data security approach to biometric harms, and therefore have substantial implications both for future legislative consideration as well as current class action litigation.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124867212","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}
In this lunchtime keynote address prepared for the UC Irvine School of Law’s Intellectual Property Law Annual Conference: The Discursive Turn in Copyright, I argue that the recent Supreme Court case Star Athletica, LLC v. Varsity Brands, Inc. has destroyed the separability test in copyright law and rendered the statutory language that supports it a nullity. What remains as a backstop is the test to determine whether a design feature is itself a “useful article,” because a design feature that satisfies Star Athletica’s separability test may nevertheless be disqualified from copyright protection if it has an “intrinsic utilitarian function” other than to portray its own appearance and is thus itself an uncopyrightable useful article. The address urges courts to shift their attention away from the now easily-satisfied separability test and toward the question of whether a design feature serves any “intrinsic utilitarian function” other than to portray its own appearance.
{"title":"Star Athletica and the Problem of Panaestheticism","authors":"Barton Beebe","doi":"10.2139/SSRN.3123967","DOIUrl":"https://doi.org/10.2139/SSRN.3123967","url":null,"abstract":"In this lunchtime keynote address prepared for the UC Irvine School of Law’s Intellectual Property Law Annual Conference: The Discursive Turn in Copyright, I argue that the recent Supreme Court case Star Athletica, LLC v. Varsity Brands, Inc. has destroyed the separability test in copyright law and rendered the statutory language that supports it a nullity. What remains as a backstop is the test to determine whether a design feature is itself a “useful article,” because a design feature that satisfies Star Athletica’s separability test may nevertheless be disqualified from copyright protection if it has an “intrinsic utilitarian function” other than to portray its own appearance and is thus itself an uncopyrightable useful article. The address urges courts to shift their attention away from the now easily-satisfied separability test and toward the question of whether a design feature serves any “intrinsic utilitarian function” other than to portray its own appearance.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124447951","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}
In the more than half-century of civil strife in Colombia, there has been a constant ebb and flow in the sharing of power between the Government and rebel groups, the largest of which is the Fuerzas Armadas Revolucionarias de Colombia – Ejercito del Pueblo (FARC). The FARC is a highly structured group controlled by a designated hierarchy, said to have encompassed as much as 17,000 fighters at its peak in the early 2000s. While it has exercised total control of national territory only for quite small areas during limited periods, it has been a dominant presence in more than half of Colombian municipalities over long periods of time. In those areas of mixed control, the population has had to navigate between governance de abajo (from below, in the plains) emanating from state institutions, and governance de arriba (from above, in the hills) emanating from the FARC. The latter adopted a dual strategy of instrumentalization and neutralization, attempting to infiltrate official institutions to coopt them to follow a line dictated by the rebels or, failing that, impeding the operations of these institutions. As a result, the FARC has been involved, in a period of time extending over several decades, in the management of a wide array of social issues, including labour relations, commerce, family life, taxation, and much more. One facet of this rebel governance has been the administration of justice. It appears that FARC judicial institutions grew out of internal disciplinary mechanisms, commonly established by non-state armed groups to ensure tactical effectiveness. The paper, relying on recent ethnographic research by anthropologists and sociologists in Colombia as well as my own field work, will map out the emergence and evolution of these FARC ‘courts’ with a view to appraise the extent to which they correspond in any meaningful manner to the concept of the judicial function. This will in turn serve to interrogate, relying on the insights of legal pluralism, the concept of the rule of law that is embodied in international legal instruments in the fields of international human rights and international humanitarian law. Unpacking the idea of the rule of law applicable in situations of armed conflict, I argue that a cogent concept of the rebel rule of law can be articulated to serve as yardstick to measure and guide insurgents in their legal governance.
{"title":"FARC Justice: Rebel Rule of Law","authors":"Réné Provost","doi":"10.2139/SSRN.2925278","DOIUrl":"https://doi.org/10.2139/SSRN.2925278","url":null,"abstract":"In the more than half-century of civil strife in Colombia, there has been a constant ebb and flow in the sharing of power between the Government and rebel groups, the largest of which is the Fuerzas Armadas Revolucionarias de Colombia – Ejercito del Pueblo (FARC). The FARC is a highly structured group controlled by a designated hierarchy, said to have encompassed as much as 17,000 fighters at its peak in the early 2000s. While it has exercised total control of national territory only for quite small areas during limited periods, it has been a dominant presence in more than half of Colombian municipalities over long periods of time. In those areas of mixed control, the population has had to navigate between governance de abajo (from below, in the plains) emanating from state institutions, and governance de arriba (from above, in the hills) emanating from the FARC. The latter adopted a dual strategy of instrumentalization and neutralization, attempting to infiltrate official institutions to coopt them to follow a line dictated by the rebels or, failing that, impeding the operations of these institutions. As a result, the FARC has been involved, in a period of time extending over several decades, in the management of a wide array of social issues, including labour relations, commerce, family life, taxation, and much more. One facet of this rebel governance has been the administration of justice. It appears that FARC judicial institutions grew out of internal disciplinary mechanisms, commonly established by non-state armed groups to ensure tactical effectiveness. The paper, relying on recent ethnographic research by anthropologists and sociologists in Colombia as well as my own field work, will map out the emergence and evolution of these FARC ‘courts’ with a view to appraise the extent to which they correspond in any meaningful manner to the concept of the judicial function. This will in turn serve to interrogate, relying on the insights of legal pluralism, the concept of the rule of law that is embodied in international legal instruments in the fields of international human rights and international humanitarian law. Unpacking the idea of the rule of law applicable in situations of armed conflict, I argue that a cogent concept of the rebel rule of law can be articulated to serve as yardstick to measure and guide insurgents in their legal governance.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122186444","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}
Often automatic upon a conviction, collateral consequences work to relegate individuals to the status of second-class citizen by the systematic deprivation of opportunity in all aspects of life. Shockingly, these penalties are not aimed solely at ex-offenders. Individuals arrested frequently are denied access to opportunity by virtue of their interaction with the criminal justice system. In the context of public housing, even an arrest is not required for the imposition of collateral consequences. Instead, a public housing agency employee, without having to satisfy any statutorily mandated burden of proof, may make a determination that a household member or guest has engaged in “drug-related criminal activity,” terminate the household from public housing assistance, and subsequently evict the family.This Article hopes to add to the existing scholarship and advocacy regarding exclusionary federal housing policies. It is meant not only to supplement the collateral-consequences literature by identifying and examining additional issues in the administration of federal housing policy, but also to draw attention to the inequities inherent in the current system. More specifically, this Article explores federal termination policies and the way in which they are administered by local public housing authorities (PHAs). I argue that federal law grants an unwarranted amount of discretion to PHAs in assessing cause for exclusion from the program and also fails to provide sufficient statutory and regulatory guidance in the enforcement of PHA lease agreements. Reviewing alleged “drug-related criminal activity” lease violations through a criminal law lens may assist PHAs in making appropriate termination decisions. With this, I recommend that a framework be established requiring PHAs to meet a statutorily mandated burden of proof prior to a “drug-related criminal activity” termination. This standard ought to focus on such activity through a criminal law frame.
{"title":"Collateral Damage: A Public Housing Consequence of the \"War on Drugs\"","authors":"Lahny R. Silva","doi":"10.2139/SSRN.2773790","DOIUrl":"https://doi.org/10.2139/SSRN.2773790","url":null,"abstract":"Often automatic upon a conviction, collateral consequences work to relegate individuals to the status of second-class citizen by the systematic deprivation of opportunity in all aspects of life. Shockingly, these penalties are not aimed solely at ex-offenders. Individuals arrested frequently are denied access to opportunity by virtue of their interaction with the criminal justice system. In the context of public housing, even an arrest is not required for the imposition of collateral consequences. Instead, a public housing agency employee, without having to satisfy any statutorily mandated burden of proof, may make a determination that a household member or guest has engaged in “drug-related criminal activity,” terminate the household from public housing assistance, and subsequently evict the family.This Article hopes to add to the existing scholarship and advocacy regarding exclusionary federal housing policies. It is meant not only to supplement the collateral-consequences literature by identifying and examining additional issues in the administration of federal housing policy, but also to draw attention to the inequities inherent in the current system. More specifically, this Article explores federal termination policies and the way in which they are administered by local public housing authorities (PHAs). I argue that federal law grants an unwarranted amount of discretion to PHAs in assessing cause for exclusion from the program and also fails to provide sufficient statutory and regulatory guidance in the enforcement of PHA lease agreements. Reviewing alleged “drug-related criminal activity” lease violations through a criminal law lens may assist PHAs in making appropriate termination decisions. With this, I recommend that a framework be established requiring PHAs to meet a statutorily mandated burden of proof prior to a “drug-related criminal activity” termination. This standard ought to focus on such activity through a criminal law frame.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126266966","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}
One question that attorneys in racially charged cases face is whether to attempt to conduct voir dire into racial bias. Voir dire is the process of questioning prospective jurors to ensure that those chosen to sit on the jury will be impartial and unbiased. Whether it is a good idea from a trial strategy perspective to voir dire prospective jurors when an attorney believes racial bias may have played a role in the events underlying the case is a question over which reasonable minds can disagree. Perhaps the most common view is that reflected by Albert Alschuler who suggested twenty-five years ago that any voir dire into racial bias would be "minimally useful." In this article, I challenge Alschuler's belief that voir dire into racial bias is of minimal benefit. I argue that calling attention to the possibility of racial bias in either the actions of the individuals involved in the case or the jurors themselves can raise the salience of race and encourage jurors to view the evidence in a less biased way than if they were not paying attention to the possibility of racial bias. While I agree with Alschuler that a simple, close-ended question like "Are you going to be biased against the defendant because of his race?" is unlikely to be helpful, I believe a series of open-ended questions, asking jurors to reflect upon how racial bias, both explicit and implicit, might affect their ability to impartially consider the evidence, can be beneficial. My article proceeds in three parts. In Part I, I review the Supreme Court's jurisprudence on voir dire into racial bias. In Part II, I examine recent social science research that may help answer the question whether calling attention to race during voir dire helps or hurts. On the one hand is a wealth of empirical research conducted over the last decade that strongly suggests calling attention to race motivates jurors to treat Black and White defendants equally. These studies indicate that when race is not highlighted, jurors tend to be more punitive and less empathetic toward Black defendants than White defendants. On the other hand are a few recent studies suggesting that when individuals are made aware of extreme racial differences in the prison population, i.e. when they are given information that suggests there are many more Blacks and Latinos than Whites in prison, Whites are more likely to support punitive criminal justice policies. I conclude in Part III that as a matter of trial strategy, it is best for an attorney concerned about racial bias to confront the issue of race head on. I argue that it is best to do so early and often, rather than waiting until just before the jury deliberates, as it may be too late by then to change jurors' minds.
{"title":"A New Approach to Voir Dire on Racial Bias","authors":"Cynthia K. Y. Lee","doi":"10.2139/SSRN.2729432","DOIUrl":"https://doi.org/10.2139/SSRN.2729432","url":null,"abstract":"One question that attorneys in racially charged cases face is whether to attempt to conduct voir dire into racial bias. Voir dire is the process of questioning prospective jurors to ensure that those chosen to sit on the jury will be impartial and unbiased. Whether it is a good idea from a trial strategy perspective to voir dire prospective jurors when an attorney believes racial bias may have played a role in the events underlying the case is a question over which reasonable minds can disagree. Perhaps the most common view is that reflected by Albert Alschuler who suggested twenty-five years ago that any voir dire into racial bias would be \"minimally useful.\" In this article, I challenge Alschuler's belief that voir dire into racial bias is of minimal benefit. I argue that calling attention to the possibility of racial bias in either the actions of the individuals involved in the case or the jurors themselves can raise the salience of race and encourage jurors to view the evidence in a less biased way than if they were not paying attention to the possibility of racial bias. While I agree with Alschuler that a simple, close-ended question like \"Are you going to be biased against the defendant because of his race?\" is unlikely to be helpful, I believe a series of open-ended questions, asking jurors to reflect upon how racial bias, both explicit and implicit, might affect their ability to impartially consider the evidence, can be beneficial. My article proceeds in three parts. In Part I, I review the Supreme Court's jurisprudence on voir dire into racial bias. In Part II, I examine recent social science research that may help answer the question whether calling attention to race during voir dire helps or hurts. On the one hand is a wealth of empirical research conducted over the last decade that strongly suggests calling attention to race motivates jurors to treat Black and White defendants equally. These studies indicate that when race is not highlighted, jurors tend to be more punitive and less empathetic toward Black defendants than White defendants. On the other hand are a few recent studies suggesting that when individuals are made aware of extreme racial differences in the prison population, i.e. when they are given information that suggests there are many more Blacks and Latinos than Whites in prison, Whites are more likely to support punitive criminal justice policies. I conclude in Part III that as a matter of trial strategy, it is best for an attorney concerned about racial bias to confront the issue of race head on. I argue that it is best to do so early and often, rather than waiting until just before the jury deliberates, as it may be too late by then to change jurors' minds.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129092714","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}
Immigration law, as it is taught, studied, and researched in the United States, imagines away the fact of preexisting indigenous peoples. Why is this the case? I argue, first, that this elision reflects and reproduces how the field of immigration law narrates its sense of space, time, and national membership. In terms of space, the field reflects the tradition of Westphalian territorial sovereignty, imagining a single sovereign absolutely controlling a defined territory and its associated population, rather than conceptualizing ambiguous spaces, neither entirely foreign nor domestic, or layered mappings. In terms of time, the implicit temporality of immigration law is the present and the future, whether in a positive valence (the cosmopolitan, the diasporic) or in an apocalyptic valence (the anchor baby, the sleeper cell), in contrast to the time of indigenous persons, which is the perceived as the time of the past. And lastly, to understand how immigration understands national membership, I look to the work of Michael Walzer, penning the most influential theoretical defense of immigration sovereignty, and in particular, to a little-noticed passage with his prescription for what to do when there are already people living in a territory which is now under the control of a new state.Despite the fact that indigenous persons disappear from how the field of immigration is conventionally understood, there is in fact a complicated and fascinating history of U.S. immigration and citizenship doctrines struggling to place indigenous persons within their ambit. I thus examine the cases denying indigenous persons naturalization under racial restrictions as well as the history of how indigenous persons have been understood under the 14th Amendment guarantee of birthright citizenship to "all persons born or naturalized in the United States, and subject to the jurisdiction thereof...." In addition, I examine transborder tribes and free passage rights, especially along the border between the United States and Canada, which was drawn through the territories of several Indian nations, and led to the 1794 Jay Treaty and subsequent efforts to exercise Jay Treaty rights. Today, the right to freely pass the border into the United States from Canada is allowed to "American Indians born in Canada" if they possess "at least 50 per centum of blood of the American Indian race." This blood quantum requirement for free passage appearing in the Immigration and Nationality Act might appear as an anomalous holdover from an archaic past, but it is perhaps better understood as emblematic of the way in which the political difference of indigenous communities is managed through the differentiation of race. The imagining away of preexisting indigenous peoples reflects the fact that the United States is perceived as a state with immigration problems, rather than a state engaged in conquest and settlement. To understand why there is amnesia about this fact, I turn to political theory.
移民法，在美国被教授、学习和研究的过程中，忽略了先前存在的土著民族的事实。为什么会这样呢?我认为，首先，这种省略反映并再现了移民法领域如何叙述其空间、时间和国家成员意识。在空间方面，该领域反映了威斯特伐利亚领土主权的传统，想象一个单一的主权绝对控制一个确定的领土及其相关人口，而不是概念化模糊的空间，既不完全是国外的也不完全是国内的，也不是分层的映射。就时间而言，移民法隐含的时间性是现在和未来，无论是积极的价态(世界主义的，散居的)还是世界末日的价态(锚婴，睡眠细胞)，与土著人民的时间形成对比，土著人民的时间被认为是过去的时间。最后，为了理解移民是如何理解国家成员身份的，我看了看迈克尔·沃尔泽(Michael Walzer)的作品，他为移民主权撰写了最具影响力的理论辩护，尤其是一段鲜为人知的段落，他提出了当已经有人生活在一个新国家控制下的领土上时该怎么做的建议。尽管土著居民从传统的移民领域中消失了，但事实上，美国移民和公民学说的复杂而迷人的历史努力将土著居民置于他们的范围内。因此，我将研究在种族限制下拒绝土著人入籍的案例，以及在第14修正案保障“所有在美国出生或入籍并受其管辖的人”的出生公民权下，土著人是如何被理解的历史....此外，我还研究了跨界部落和自由通行权，特别是沿着美国和加拿大之间的边界，这条边界是通过几个印第安民族的领土划定的，并导致了1794年的杰伊条约和随后行使杰伊条约权利的努力。今天，“在加拿大出生的美国印第安人”只要拥有“至少50%的美国印第安人血统”，就有权从加拿大自由通过边境进入美国。《移民与国籍法》(Immigration and Nationality Act)中出现的对自由通行的血液量要求，可能看起来像是远古时代的反常延续，但它或许更能被理解为土著社区的政治差异是通过种族差异来管理的一种象征。对先前存在的土著民族的想象反映了这样一个事实，即美国被视为一个有移民问题的国家，而不是一个从事征服和定居的国家。为了理解为什么人们对这一事实健忘症，我转向了政治理论。在这里，我指出了自由社会契约与定居逻辑(在新世界播种、移民和新主权)的融合，以及定居主义与移民的融合，无论是字面上还是隐喻上。移民项目需要尸体。此外，移民也为移民主义提供了借口。随着移民主义的概念变得令人讨厌，定居者将自己描绘成移民，特别是形成了一个移民国家。这些移民选择加入社会契约，表明美国是自由选择的产物，排除了美国民主的非共识基础。对美国的渴望使美国的剥夺黯然失色。通过这个过程，土著人变成了异乡人，移居者变成了本地人。移民国家被归化为移民国家。
{"title":"The Indigenous As Alien","authors":"Leti Volpp","doi":"10.2139/SSRN.2653969","DOIUrl":"https://doi.org/10.2139/SSRN.2653969","url":null,"abstract":"Immigration law, as it is taught, studied, and researched in the United States, imagines away the fact of preexisting indigenous peoples. Why is this the case? I argue, first, that this elision reflects and reproduces how the field of immigration law narrates its sense of space, time, and national membership. In terms of space, the field reflects the tradition of Westphalian territorial sovereignty, imagining a single sovereign absolutely controlling a defined territory and its associated population, rather than conceptualizing ambiguous spaces, neither entirely foreign nor domestic, or layered mappings. In terms of time, the implicit temporality of immigration law is the present and the future, whether in a positive valence (the cosmopolitan, the diasporic) or in an apocalyptic valence (the anchor baby, the sleeper cell), in contrast to the time of indigenous persons, which is the perceived as the time of the past. And lastly, to understand how immigration understands national membership, I look to the work of Michael Walzer, penning the most influential theoretical defense of immigration sovereignty, and in particular, to a little-noticed passage with his prescription for what to do when there are already people living in a territory which is now under the control of a new state.Despite the fact that indigenous persons disappear from how the field of immigration is conventionally understood, there is in fact a complicated and fascinating history of U.S. immigration and citizenship doctrines struggling to place indigenous persons within their ambit. I thus examine the cases denying indigenous persons naturalization under racial restrictions as well as the history of how indigenous persons have been understood under the 14th Amendment guarantee of birthright citizenship to \"all persons born or naturalized in the United States, and subject to the jurisdiction thereof....\" In addition, I examine transborder tribes and free passage rights, especially along the border between the United States and Canada, which was drawn through the territories of several Indian nations, and led to the 1794 Jay Treaty and subsequent efforts to exercise Jay Treaty rights. Today, the right to freely pass the border into the United States from Canada is allowed to \"American Indians born in Canada\" if they possess \"at least 50 per centum of blood of the American Indian race.\" This blood quantum requirement for free passage appearing in the Immigration and Nationality Act might appear as an anomalous holdover from an archaic past, but it is perhaps better understood as emblematic of the way in which the political difference of indigenous communities is managed through the differentiation of race. The imagining away of preexisting indigenous peoples reflects the fact that the United States is perceived as a state with immigration problems, rather than a state engaged in conquest and settlement. To understand why there is amnesia about this fact, I turn to political theory.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129834526","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}
Taking as the point of departure the 2008 death-penalty case of Baze v. Rees, but then stepping back into the nineteenth century in search for a deeper understanding, the research project and article narrate three acts of takings of life, which are sanctioned by the state and fashioned by law, and have stirred significant legal controversy and brought about legal reform: the death penalty, euthanasia, and animal slaughter.The ethics paradox that underlies all three cases separates the question of killing from the method of killing. Whereas the former is taken for granted (in the case of animals), is constitutionally permissible (as in the case of the death penalty), or in any event is no longer taken as a legal taboo (as in the case of physician-assisted suicide), the latter is placed under close scrutiny and monitored for any unnecessary imposition of pain and suffering on the helpless body. How has it come about that the ethics and practice of these methods of killing share so much in common, whereas the justifications for the killings themselves share nothing at all? I argue that humane killing is no oxymoron, and far from being a logical contradiction, it captures a deep and meaningful logic of modern law and ethics.
{"title":"Humane Killing and the Ethics of the Secular: Regulating the Death Penalty, Euthanasia, and Animal Slaughter","authors":"S. Lavi","doi":"10.2139/SSRN.2421240","DOIUrl":"https://doi.org/10.2139/SSRN.2421240","url":null,"abstract":"Taking as the point of departure the 2008 death-penalty case of Baze v. Rees, but then stepping back into the nineteenth century in search for a deeper understanding, the research project and article narrate three acts of takings of life, which are sanctioned by the state and fashioned by law, and have stirred significant legal controversy and brought about legal reform: the death penalty, euthanasia, and animal slaughter.The ethics paradox that underlies all three cases separates the question of killing from the method of killing. Whereas the former is taken for granted (in the case of animals), is constitutionally permissible (as in the case of the death penalty), or in any event is no longer taken as a legal taboo (as in the case of physician-assisted suicide), the latter is placed under close scrutiny and monitored for any unnecessary imposition of pain and suffering on the helpless body. How has it come about that the ethics and practice of these methods of killing share so much in common, whereas the justifications for the killings themselves share nothing at all? I argue that humane killing is no oxymoron, and far from being a logical contradiction, it captures a deep and meaningful logic of modern law and ethics.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122250031","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}
This Article examines from a postcolonial perspective a deep paradox in contemporary anti-trafficking law and discourse. The inordinate attention on trafficking in Western industrialized economies is disproportionate to the extent of the problem. Only 7% of the world’s 20.9 million forced laborers are in developed economies and the EU while 56% are in Asia Pacific. Yet in BRIC countries like India with a substantial majority of the world’s trafficked victims and where 90% of all trafficking is domestic, trafficking has little policy resonance. Trafficking was only recently criminalized as part of India’s extensive rape law reforms. India, however, remains an active site for sexual humanitarianism as American evangelical groups and local police dramatically raid and rescue ‘female sex slaves’ from gritty big-city brothels. As developing countries increasingly shape international anti-trafficking law and policy, this Article proposes two ways whereby the postcolony could be far more than a site of sexual humanitarianism. First, I offer India’s bonded, contract and migrant labor laws as a robust labor law model against trafficking that could inform international legal developments. This is in contrast to the criminal justice model propagated by the UN Trafficking Protocol worldwide. Second, through a case study of Indian sex workers’ mobilization against trafficking through selfregulatory boards in a red-light area, I show how sex workers are not simply passive victims and that community-based initiatives that make sparing use of criminal law could prove more effective than conventional anti-trafficking strategies.
{"title":"Beyond Sexual Humanitarianism: A Post-Colonial Approach to Anti-Trafficking Law","authors":"Prabha Kotiswaran","doi":"10.2139/SSRN.2939251","DOIUrl":"https://doi.org/10.2139/SSRN.2939251","url":null,"abstract":"This Article examines from a postcolonial perspective a deep paradox in contemporary anti-trafficking law and discourse. The inordinate attention on trafficking in Western industrialized economies is disproportionate to the extent of the problem. Only 7% of the world’s 20.9 million forced laborers are in developed economies and the EU while 56% are in Asia Pacific. Yet in BRIC countries like India with a substantial majority of the world’s trafficked victims and where 90% of all trafficking is domestic, trafficking has little policy resonance. Trafficking was only recently criminalized as part of India’s extensive rape law reforms. India, however, remains an active site for sexual humanitarianism as American evangelical groups and local police dramatically raid and rescue ‘female sex slaves’ from gritty big-city brothels. As developing countries increasingly shape international anti-trafficking law and policy, this Article proposes two ways whereby the postcolony could be far more than a site of sexual humanitarianism. First, I offer India’s bonded, contract and migrant labor laws as a robust labor law model against trafficking that could inform international legal developments. This is in contrast to the criminal justice model propagated by the UN Trafficking Protocol worldwide. Second, through a case study of Indian sex workers’ mobilization against trafficking through selfregulatory boards in a red-light area, I show how sex workers are not simply passive victims and that community-based initiatives that make sparing use of criminal law could prove more effective than conventional anti-trafficking strategies.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2014-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126401470","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}
The current legal framework for protecting voting rights in the United States has been dramatically destabilized by Supreme Court decisions re-interpreting the protections against minority vote dilution and requires rethinking to survive modern challenges. At the same time, the nation has itself undergone dramatic changes in the racial composition of its polity and in the complexity and salience of race as a factor in political life. In this paper, we focus on a relatively unexamined constituent of this complex reality of modern racial diversity that illustrates some of the core features that all minority groups face in continuing VRA challenges: Asian Americans. In the face of apparent political disempowerment, it is curious that Asian Americans have very rarely succeeded in invoking Section 2 of the Voting Rights Act, a legal measure devised specifically to bolster minority political power. Is this because the necessary conditions for a successful political challenge have not yet arisen? Is the problem a structural one implicating problems in institutional design? Or is it some combination of both, indicating the double harm of a permanent political minority without ability to secure legal redress under the VRA?Social science and legal scholarship suggest that the legal standards used to trigger the special protections of the VRA contain underspecified assumptions about political behavior and oversimplified understandings about racial identity. This paper attempts to mobilize insights about the political behavior of racial minorities in the service of a multi-dimensional approach toward thinking about legal remedies for democratic exclusion. Our core contention is that the problem of democratic exclusion is multi-factorial and requires a multi-pronged approach to redress. Such an approach includes augmenting available data about the political participation of racial minorities, refining empirical measures to reflect racial politics in a complex, multiracial electorate, and revisiting available remedies in light of a problem with both political and legal dimensions.
美国目前保护投票权的法律框架因最高法院重新解释防止少数族裔投票权被稀释的规定而严重不稳定，需要重新思考以应对现代挑战。与此同时，这个国家本身在其政体的种族构成以及种族作为政治生活中的一个因素的复杂性和突出性方面也发生了巨大变化。在本文中，我们将重点关注现代种族多样性这一复杂现实中一个相对未被研究的组成部分，它说明了所有少数群体在持续的VRA挑战中面临的一些核心特征:亚裔美国人。在明显的政治权力被剥夺的情况下，令人好奇的是，亚裔美国人很少能成功地援引《投票权法案》(Voting Rights Act)第2条，这是一项专门为增强少数族裔政治权力而设计的法律措施。这是因为成功进行政治挑战的必要条件尚未出现吗?这个问题是结构性的吗?它是否暗示了制度设计中的问题?或者两者兼而有之，表明一个永久的政治少数派没有能力根据《投票法》获得法律救济的双重危害?社会科学和法律学者认为，用于触发VRA特殊保护的法律标准包含了对政治行为的不明确假设和对种族身份的过于简化的理解。本文试图动员对少数民族政治行为的见解，以多维度的方式思考民主排斥的法律补救措施。我们的核心论点是，民主排斥问题是多因素的，需要采取多管齐下的办法加以纠正。这种方法包括增加有关少数种族政治参与的现有数据，改进经验措施以反映复杂的多种族选民中的种族政治，并根据政治和法律层面的问题重新审视现有的补救办法。
{"title":"Reimagining Democratic Inclusion: Asian Americans and the Voting Rights Act","authors":"M. Chen, Taeku Lee","doi":"10.2139/ssrn.2097857","DOIUrl":"https://doi.org/10.2139/ssrn.2097857","url":null,"abstract":"The current legal framework for protecting voting rights in the United States has been dramatically destabilized by Supreme Court decisions re-interpreting the protections against minority vote dilution and requires rethinking to survive modern challenges. At the same time, the nation has itself undergone dramatic changes in the racial composition of its polity and in the complexity and salience of race as a factor in political life. In this paper, we focus on a relatively unexamined constituent of this complex reality of modern racial diversity that illustrates some of the core features that all minority groups face in continuing VRA challenges: Asian Americans. In the face of apparent political disempowerment, it is curious that Asian Americans have very rarely succeeded in invoking Section 2 of the Voting Rights Act, a legal measure devised specifically to bolster minority political power. Is this because the necessary conditions for a successful political challenge have not yet arisen? Is the problem a structural one implicating problems in institutional design? Or is it some combination of both, indicating the double harm of a permanent political minority without ability to secure legal redress under the VRA?Social science and legal scholarship suggest that the legal standards used to trigger the special protections of the VRA contain underspecified assumptions about political behavior and oversimplified understandings about racial identity. This paper attempts to mobilize insights about the political behavior of racial minorities in the service of a multi-dimensional approach toward thinking about legal remedies for democratic exclusion. Our core contention is that the problem of democratic exclusion is multi-factorial and requires a multi-pronged approach to redress. Such an approach includes augmenting available data about the political participation of racial minorities, refining empirical measures to reflect racial politics in a complex, multiracial electorate, and revisiting available remedies in light of a problem with both political and legal dimensions.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2013-10-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122433577","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}
This keynote address for the symposium on “Foxes, Henhouses, and Commissions: Assessing the Nonpartisan Model in Election Administration, Redistricting, and Campaign Finance,” at UC Irvine on September 14, 2012 has three parts. First, it explains why institutional reform, while necessary, is not by itself sufficient to achieve impartial governance of the electoral process in the public interest. Instead, institutional reform must be supplemented by an adequate measure of nonpartisan political virtue, in pursuit of the public interest, on behalf of elected and appointed officials responsible for the governance of the electoral process. Second, to illustrate this kind of electoral virtue, the middle (and main) part of this essay tells the largely forgotten — but highly significant — story of Samuel Randall’s conduct as Speaker of the U.S. House of Representatives on March 1, 1877, at the crucial climactic moment of the disputed Hayes-Tilden presidential election. As eyewitnesses understood, Randall’s resistance to hardliners within his own party averted the risk that the congressional counting of Electoral Votes would not be complete for the March 4 deadline for inaugurating the new president. Moreover, if March 4 had arrived with both Hayes and Tilden claiming the authority of Commander-in-Chief based on different interpretations of the constitutional consequences of an incomplete Electoral Count, the nation would have suffered a genuinely severe constitutional crisis. Therefore, Randall’s nonpartisan conduct to prevent the possibility of that constitutional crisis serves as an exemplary “profile in electoral courage,” to which contemporary and future politicians can aspire (if they, too, are put in a position where they must choose between partisanship and the public good when making a decision about the governance of the electoral process). The third (and final) part of the essay briefly explores how civics education, both in schools and in the culture more broadly, can invoke this and similar examples of electoral virtue, in an effort to cultivate an atmosphere in which other “profiles in electoral courage” are more likely to occur.
{"title":"Virtue Over Party: Samuel Randall's Electoral Heroism and Its Continuing Importance","authors":"E. Foley","doi":"10.2139/SSRN.2210388","DOIUrl":"https://doi.org/10.2139/SSRN.2210388","url":null,"abstract":"This keynote address for the symposium on “Foxes, Henhouses, and Commissions: Assessing the Nonpartisan Model in Election Administration, Redistricting, and Campaign Finance,” at UC Irvine on September 14, 2012 has three parts. First, it explains why institutional reform, while necessary, is not by itself sufficient to achieve impartial governance of the electoral process in the public interest. Instead, institutional reform must be supplemented by an adequate measure of nonpartisan political virtue, in pursuit of the public interest, on behalf of elected and appointed officials responsible for the governance of the electoral process. Second, to illustrate this kind of electoral virtue, the middle (and main) part of this essay tells the largely forgotten — but highly significant — story of Samuel Randall’s conduct as Speaker of the U.S. House of Representatives on March 1, 1877, at the crucial climactic moment of the disputed Hayes-Tilden presidential election. As eyewitnesses understood, Randall’s resistance to hardliners within his own party averted the risk that the congressional counting of Electoral Votes would not be complete for the March 4 deadline for inaugurating the new president. Moreover, if March 4 had arrived with both Hayes and Tilden claiming the authority of Commander-in-Chief based on different interpretations of the constitutional consequences of an incomplete Electoral Count, the nation would have suffered a genuinely severe constitutional crisis. Therefore, Randall’s nonpartisan conduct to prevent the possibility of that constitutional crisis serves as an exemplary “profile in electoral courage,” to which contemporary and future politicians can aspire (if they, too, are put in a position where they must choose between partisanship and the public good when making a decision about the governance of the electoral process). The third (and final) part of the essay briefly explores how civics education, both in schools and in the culture more broadly, can invoke this and similar examples of electoral virtue, in an effort to cultivate an atmosphere in which other “profiles in electoral courage” are more likely to occur.","PeriodicalId":326558,"journal":{"name":"UC Irvine law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2013-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121320989","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}
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