This article examines the interaction between data privacy, which was a highly salient political issue before the events of September 11, and cyber-security and homeland security, which became much more salient after those events. The article illustrates the shift in salience by examining the USA-PATRIOT Act, which was passed quickly in the fall of 2001 despite containing a number of surveillance provisions that had been explicitly rejected by Congress in 2000. To understand the interaction between privacy and security, the article examines the medical privacy rule issued in 2000 under the Health Insurance Portability and Accountability Act (HIPAA). (In the interests of full disclosure, the authors were the lead White House officials in coordinating the privacy rule.) The analysis here shows that the HIPAA rule stands up well to the concerns of the post-September 11 era. Concerns about public safety are met by existing provisions that permit disclosures to protect national security, to react to emergency circumstances, and to respond to law enforcement inquiries. The article explores in particular detail the proposed Model State Emergency Health Powers Act, drafted in the wake of the 2001 anthrax attacks. Professors Lawrence Gostin and James Hodge have argued that this Act is justified by a new "model of information sharing" for medical information. Our article concludes that public health concerns are appropriately addressed by the current HIPAA rule, and that a "model of information sharing" sends precisely the wrong signal about how the health system will handle issues of data privacy and security. More generally, the article analyzes situations of "security vs. privacy", where the two values are antagonistic, and situations of "security and privacy", where the two values work together. Security in some instances means greater surveillance, information gathering, and information sharing. For instance, law enforcement can monitor the online movements of hackers or hospitals can more quickly report cases of anthrax infection. These situations of "security vs. privacy" are defined as instances where security is promoted by getting information to the proper decisionmakers. As these information flows increase, privacy decreases. By contrast, security measures often promote privacy. Good security is one of the standard privacy fair information practices, because otherwise any hacker can get into a sensitive database. Good security, moreover, creates audit trails about which authorized users have accessed particular systems or data. Such auditing mechanisms promote the fair information practice of accountability, by deterring wrongdoing and making enforcement more effective. Finally, the authors explain how the most cost-effective and thorough implementation of privacy occurs at the time of a computer system overhaul. This approach is fundamental to HIPAA, which provided that privacy and security protections should be built at the same time as the sh
{"title":"Security and privacy after September 11: the health care example","authors":"Peter P. Swire, Lauren Steinfeld","doi":"10.1145/543482.543493","DOIUrl":"https://doi.org/10.1145/543482.543493","url":null,"abstract":"This article examines the interaction between data privacy, which was a highly salient political issue before the events of September 11, and cyber-security and homeland security, which became much more salient after those events. The article illustrates the shift in salience by examining the USA-PATRIOT Act, which was passed quickly in the fall of 2001 despite containing a number of surveillance provisions that had been explicitly rejected by Congress in 2000. To understand the interaction between privacy and security, the article examines the medical privacy rule issued in 2000 under the Health Insurance Portability and Accountability Act (HIPAA). (In the interests of full disclosure, the authors were the lead White House officials in coordinating the privacy rule.) The analysis here shows that the HIPAA rule stands up well to the concerns of the post-September 11 era. Concerns about public safety are met by existing provisions that permit disclosures to protect national security, to react to emergency circumstances, and to respond to law enforcement inquiries. The article explores in particular detail the proposed Model State Emergency Health Powers Act, drafted in the wake of the 2001 anthrax attacks. Professors Lawrence Gostin and James Hodge have argued that this Act is justified by a new \"model of information sharing\" for medical information. Our article concludes that public health concerns are appropriately addressed by the current HIPAA rule, and that a \"model of information sharing\" sends precisely the wrong signal about how the health system will handle issues of data privacy and security. More generally, the article analyzes situations of \"security vs. privacy\", where the two values are antagonistic, and situations of \"security and privacy\", where the two values work together. Security in some instances means greater surveillance, information gathering, and information sharing. For instance, law enforcement can monitor the online movements of hackers or hospitals can more quickly report cases of anthrax infection. These situations of \"security vs. privacy\" are defined as instances where security is promoted by getting information to the proper decisionmakers. As these information flows increase, privacy decreases. By contrast, security measures often promote privacy. Good security is one of the standard privacy fair information practices, because otherwise any hacker can get into a sensitive database. Good security, moreover, creates audit trails about which authorized users have accessed particular systems or data. Such auditing mechanisms promote the fair information practice of accountability, by deterring wrongdoing and making enforcement more effective. Finally, the authors explain how the most cost-effective and thorough implementation of privacy occurs at the time of a computer system overhaul. This approach is fundamental to HIPAA, which provided that privacy and security protections should be built at the same time as the sh","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"86 6 1","pages":"1515-40"},"PeriodicalIF":1.3,"publicationDate":"2002-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1145/543482.543493","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64140334","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay offers guidelines for courts to follow when engaging in extralegal decisionmaking. It begins by hypothesizing that the remedial decision in Bush v. Gore - the decision not to permit Florida to engage in further recounting - is best understood as an example of such a decision, i.e., as a case where the Court ordered an outcome it thought would serve the country's interests despite being unjustifiable by reference to traditional legal standards. The essay argues that the courts' usual practice of limiting themselves to decisions they can support with plausible interpretations of legal doctrine helps to constrain judges and provides a partial, but useful, brake on the temptation to make undemocratic and unwise decisions; as judges abandon doctrine in favor of more bluntly pragmatic grounds for decision, it becomes important for them to observe other constraints that can serve the purposes normally furnished by an adherence to more traditional judicial methods. The essay suggests a series of such constraints and considers whether they were observed in Bush v. Gore. First, such decisions should be reserved for cases where the harm to be averted is unambiguous, i.e., where the costs and benefits of the proposed judicial action are sufficiently uncontroversial to serve as impartial bases for decision. This was not the case in Bush v. Gore, as it was both empirically and conceptually difficult to determine in a politically neutral way whether the benefits of the Court's remedial decision outweighed the costs. Second, such decisions should be taken only to address problems with which actors and institutions cannot effectively cope, and should do so in calibrated ways that allow other actors to check the court's judgment. In Bush v. Gore there were other actors in a position to deal with the problems that the court's remedy was intended to address, and the remedy left inadequate room as a practical matter for those other actors to check the court's power. Third, such decisions should be avoided where there is a risk of self-dealing; they also should be bipartisan - especially where the risk of self-dealing cannot be avoided. The stakes of Bush v. Gore included the selection of the figure who would fill any vacancies on the Court for the subsequent four years, and the Court split along customary partisan lines in making its decision. In these circumstances the Court should not have ventured into extralegalism if it was unable to rally more than five votes to do so - and particularly THOSE five votes. In its favor, it can be said that the remedial decision was a limited strike; it did not create a precedent that is likely to set a bad example for the Court or for other courts, or against which public opposition will be able to accumulate. I conclude that in light of these considerations, the Court's remedial decision in Bush v. Gore was ill-taken if understood as an exercise in well-intentioned lawlessness, or as a study in a judicial pragmatism t
{"title":"'To Do a Great Right, Do a Little Wrong': A User's Guide to Judicial Lawlessness","authors":"W. Farnsworth","doi":"10.2139/SSRN.288432","DOIUrl":"https://doi.org/10.2139/SSRN.288432","url":null,"abstract":"This essay offers guidelines for courts to follow when engaging in extralegal decisionmaking. It begins by hypothesizing that the remedial decision in Bush v. Gore - the decision not to permit Florida to engage in further recounting - is best understood as an example of such a decision, i.e., as a case where the Court ordered an outcome it thought would serve the country's interests despite being unjustifiable by reference to traditional legal standards. The essay argues that the courts' usual practice of limiting themselves to decisions they can support with plausible interpretations of legal doctrine helps to constrain judges and provides a partial, but useful, brake on the temptation to make undemocratic and unwise decisions; as judges abandon doctrine in favor of more bluntly pragmatic grounds for decision, it becomes important for them to observe other constraints that can serve the purposes normally furnished by an adherence to more traditional judicial methods. The essay suggests a series of such constraints and considers whether they were observed in Bush v. Gore. First, such decisions should be reserved for cases where the harm to be averted is unambiguous, i.e., where the costs and benefits of the proposed judicial action are sufficiently uncontroversial to serve as impartial bases for decision. This was not the case in Bush v. Gore, as it was both empirically and conceptually difficult to determine in a politically neutral way whether the benefits of the Court's remedial decision outweighed the costs. Second, such decisions should be taken only to address problems with which actors and institutions cannot effectively cope, and should do so in calibrated ways that allow other actors to check the court's judgment. In Bush v. Gore there were other actors in a position to deal with the problems that the court's remedy was intended to address, and the remedy left inadequate room as a practical matter for those other actors to check the court's power. Third, such decisions should be avoided where there is a risk of self-dealing; they also should be bipartisan - especially where the risk of self-dealing cannot be avoided. The stakes of Bush v. Gore included the selection of the figure who would fill any vacancies on the Court for the subsequent four years, and the Court split along customary partisan lines in making its decision. In these circumstances the Court should not have ventured into extralegalism if it was unable to rally more than five votes to do so - and particularly THOSE five votes. In its favor, it can be said that the remedial decision was a limited strike; it did not create a precedent that is likely to set a bad example for the Court or for other courts, or against which public opposition will be able to accumulate. I conclude that in light of these considerations, the Court's remedial decision in Bush v. Gore was ill-taken if understood as an exercise in well-intentioned lawlessness, or as a study in a judicial pragmatism t","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"26 1","pages":""},"PeriodicalIF":1.3,"publicationDate":"2001-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68416690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Who is the most powerful Supreme Court Justice? In 1996 we measured voting power on the Court according to each Justice's ability to form five-member coalitions. From the set of all coalitions formed by the Court during its 1994 and 1995 Terms, we developed a generalized Banzhaf index of the Justices' relative strength. Generally speaking, participating in a greater number of unique coalitions translates into greater judicial voting power. To supplement the small number of decisions then available, we derived hypothetical five-Justice coalitions from the intersections of actually observed coalitions involving more than five members. Professor Lynn Baker contested our model, favoring instead an additive measure based on the number of times each Justice participated in any winning coalition. This Article stages a new Power Pageant of the Justices in light of the cases decided by the Court since 1996. For more than seven Terms, the Court has retained the same personnel. This stability provides a unique opportunity to test competing measures of judicial voting power. We hypothesized in 1996 that a larger set of cases might obviate the need to resort to inferred coalitions. Analysis of this larger data set in fact undermines the validity of both our measure and that of Professor Baker over the long run. We conclude that there are three different measures of voting power each reflecting a different aspect of judicial power.
{"title":"The Most Dangerous Justice Rides Again: Revisiting the Power Pageant of the Justices","authors":"Paul H. Edelman, J. Chen","doi":"10.2139/SSRN.276370","DOIUrl":"https://doi.org/10.2139/SSRN.276370","url":null,"abstract":"Who is the most powerful Supreme Court Justice? In 1996 we measured voting power on the Court according to each Justice's ability to form five-member coalitions. From the set of all coalitions formed by the Court during its 1994 and 1995 Terms, we developed a generalized Banzhaf index of the Justices' relative strength. Generally speaking, participating in a greater number of unique coalitions translates into greater judicial voting power. To supplement the small number of decisions then available, we derived hypothetical five-Justice coalitions from the intersections of actually observed coalitions involving more than five members. Professor Lynn Baker contested our model, favoring instead an additive measure based on the number of times each Justice participated in any winning coalition. This Article stages a new Power Pageant of the Justices in light of the cases decided by the Court since 1996. For more than seven Terms, the Court has retained the same personnel. This stability provides a unique opportunity to test competing measures of judicial voting power. We hypothesized in 1996 that a larger set of cases might obviate the need to resort to inferred coalitions. Analysis of this larger data set in fact undermines the validity of both our measure and that of Professor Baker over the long run. We conclude that there are three different measures of voting power each reflecting a different aspect of judicial power.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"75 1","pages":""},"PeriodicalIF":1.3,"publicationDate":"2001-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68300938","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2001-01-01DOI: 10.1017/9781108770804.011
David H. Getches
{"title":"Beyond Indian Law: The Rehnquist Court’s Pursuit of States’ Rights, Color-Blind Justice, and Mainstream Values","authors":"David H. Getches","doi":"10.1017/9781108770804.011","DOIUrl":"https://doi.org/10.1017/9781108770804.011","url":null,"abstract":"","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"1 1","pages":""},"PeriodicalIF":1.3,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/9781108770804.011","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"56926216","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Procreative liberty and contemporaneous choice: an inalienable rights approach to frozen embryo disputes.","authors":"C H Coleman","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"84 1","pages":"55-127"},"PeriodicalIF":1.3,"publicationDate":"1999-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25886868","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Economics of Legal History","authors":"Herbert Hovenkamp","doi":"10.4337/9781784716400","DOIUrl":"https://doi.org/10.4337/9781784716400","url":null,"abstract":"","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"67 1","pages":"645"},"PeriodicalIF":1.3,"publicationDate":"1983-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70706146","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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