In the past decade, major retailers nationwide have begun to employ a private, for-profit system to settle criminal disputes, extracting payment from shoplifting suspects in exchange for a promise not to call the police. This Article examines what retailers’ decisions reveal about our public system of criminal justice and the concerns of the agents who run it, the victims who rely on it, and the suspects whose lives it alters. The private policing of commercial spaces is well known, as is private incarceration of convicted offenders. This Article is the first, however, to document how industry has penetrated new parts of the criminal process, administering sanctions to resolve thousands of shoplifting allegations each year. Proponents of private justice claim that everyone wins. Critics say it’s blackmail. The Article takes a tentative middle ground: While “retail justice” is not the American ideal, it may nonetheless be preferable to public criminal justice, at least if certain conditions are met. Rather than cancel the private justice experiment, therefore, as several states are poised to do, the government should aim to foster optimal conditions for its success. Extending the central analysis, the Article then shows how the study of private justice leads to fresh perspectives on important criminal justice issues. It suggests, for example, that the costs to crime victims of assisting the prosecution may be a feature of the system, not a bug, if they encourage victims to invest in efficient crime-deterring precautions. It also complicates legal academic models of police and prosecutorial behavior built on maximizing arrests and convictions. The Article concludes by identifying conditions that conduce to private criminal justice and speculating about the next frontiers.
{"title":"Criminal Justice, Inc.","authors":"John Rappaport","doi":"10.2139/SSRN.3059793","DOIUrl":"https://doi.org/10.2139/SSRN.3059793","url":null,"abstract":"In the past decade, major retailers nationwide have begun to employ a private, for-profit system to settle criminal disputes, extracting payment from shoplifting suspects in exchange for a promise not to call the police. This Article examines what retailers’ decisions reveal about our public system of criminal justice and the concerns of the agents who run it, the victims who rely on it, and the suspects whose lives it alters. The private policing of commercial spaces is well known, as is private incarceration of convicted offenders. This Article is the first, however, to document how industry has penetrated new parts of the criminal process, administering sanctions to resolve thousands of shoplifting allegations each year. \u0000 \u0000Proponents of private justice claim that everyone wins. Critics say it’s blackmail. The Article takes a tentative middle ground: While “retail justice” is not the American ideal, it may nonetheless be preferable to public criminal justice, at least if certain conditions are met. Rather than cancel the private justice experiment, therefore, as several states are poised to do, the government should aim to foster optimal conditions for its success. \u0000 \u0000Extending the central analysis, the Article then shows how the study of private justice leads to fresh perspectives on important criminal justice issues. It suggests, for example, that the costs to crime victims of assisting the prosecution may be a feature of the system, not a bug, if they encourage victims to invest in efficient crime-deterring precautions. It also complicates legal academic models of police and prosecutorial behavior built on maximizing arrests and convictions. The Article concludes by identifying conditions that conduce to private criminal justice and speculating about the next frontiers.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2018-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43117496","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Scholarship and jurisprudence concerning the Constitution’s separation of powers today is characterized by sharp disagreement about general theory and specific outcomes. The leading theories diverge on how to model the motives of institutional actors; on how to weigh text, history, doctrine, and norms; and on whether to characterize the separation-of-powers system as abiding in a stable equilibrium or as enthralled in convulsively transformative paroxysms. Congress’s Constitution — a major contribution to theorizing on the separation of powers — provides a platform to step back and isolate these important, if not always candidly recognized, disputes about the empirical and normative predicates of separation-of-powers theory — predicates that can be usefully grouped under the rubric of ‘separation of powers metatheory.’ Unlike much other work in the field, Congress’s Constitution directly identifies and addresses the three important key metatheoretical questions in play when the separation of powers is theorized. This review analyzes how it grapples with those profound challenges, and tries to articulate a descriptively fit and normatively compelling account of our federal government. Considering Congress’s Constitution from this perspective offers a valuable opportunity for considering the state and direction of academic theorizing on the separation of powers more broadly.
{"title":"Separation of Powers Metatheory","authors":"Aziz Z Huq","doi":"10.2139/SSRN.3064267","DOIUrl":"https://doi.org/10.2139/SSRN.3064267","url":null,"abstract":"Scholarship and jurisprudence concerning the Constitution’s separation of powers today is characterized by sharp disagreement about general theory and specific outcomes. The leading theories diverge on how to model the motives of institutional actors; on how to weigh text, history, doctrine, and norms; and on whether to characterize the separation-of-powers system as abiding in a stable equilibrium or as enthralled in convulsively transformative paroxysms. Congress’s Constitution — a major contribution to theorizing on the separation of powers — provides a platform to step back and isolate these important, if not always candidly recognized, disputes about the empirical and normative predicates of separation-of-powers theory — predicates that can be usefully grouped under the rubric of ‘separation of powers metatheory.’ Unlike much other work in the field, Congress’s Constitution directly identifies and addresses the three important key metatheoretical questions in play when the separation of powers is theorized. This review analyzes how it grapples with those profound challenges, and tries to articulate a descriptively fit and normatively compelling account of our federal government. Considering Congress’s Constitution from this perspective offers a valuable opportunity for considering the state and direction of academic theorizing on the separation of powers more broadly.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2017-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3064267","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41387699","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
One of the most perplexing problems in private law is when and how to compensate victims for emotional harm. This Essay proposes a novel way to accomplish this remedial goal—a restoration measure of damages. It solves the two fundamental problems of compensation for emotional harm—measurement and verification. Instead of measuring the emotional harm and awarding the aggrieved party money damages, this Essay proposes that defendants pay damages directly to restore the underlying interest, the impairment of which led to the emotional harm. And to solve the problem of verification—compensating only those who truly suffered the emotional harm—this Essay develops a sorting mechanism that separates sincere claimants from fakers, awarding the restoration measure of damages to account only for the harm suffered by the former. This Essay further demonstrates how the proposed restoration remedy would apply in important cases and discusses its relevance to additional remedial challenges in private law.
{"title":"The Restoration Remedy in Private Law","authors":"O. Ben‐Shahar, A. Porat, A. Porat","doi":"10.2139/SSRN.3058186","DOIUrl":"https://doi.org/10.2139/SSRN.3058186","url":null,"abstract":"One of the most perplexing problems in private law is when and how to compensate victims for emotional harm. This Essay proposes a novel way to accomplish this remedial goal—a restoration measure of damages. It solves the two fundamental problems of compensation for emotional harm—measurement and verification. Instead of measuring the emotional harm and awarding the aggrieved party money damages, this Essay proposes that defendants pay damages directly to restore the underlying interest, the impairment of which led to the emotional harm. And to solve the problem of verification—compensating only those who truly suffered the emotional harm—this Essay develops a sorting mechanism that separates sincere claimants from fakers, awarding the restoration measure of damages to account only for the harm suffered by the former. This Essay further demonstrates how the proposed restoration remedy would apply in important cases and discusses its relevance to additional remedial challenges in private law.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2017-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48468158","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recommended Citation Edward G. Fox, Merritt B. Fox & Ronald J. Gilson, Economic Crisis and the Integration of Law and Finance: The Impact of Volatility Spikes, COLUMBIA LAW REVIEW, VOL. 116, P. 325, 2016; EUROPEAN CORPORATE GOVERNANCE INSTITUTE (ECGI) LAW WORKING PAPER NO. 243/2014; STANFORD LAW & ECONOMICS OLIN WORKING PAPER NO. 460; ROCK CENTER FOR CORPORATE GOVERNANCE AT STANFORD UNIVERSITY WORKING PAPER NO. 173; COLUMBIA LAW & ECONOMICS WORKING PAPER NO. 468 (2014). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1847
Edward G. Fox、Merritt B. Fox、Ronald J. Gilson:《经济危机与法律与金融的整合:波动峰值的影响》，《哥伦比亚法律评论》第116卷，第325页，2016;欧洲公司治理研究所(ecgi)法律工作文件第243/2014;斯坦福大学法律与经济学工作文件编号:460;斯坦福大学洛克公司治理研究中心工作论文编号:173;哥伦比亚法律与经济工作文件第468(2014)。可在:https://scholarship.law.columbia.edu/faculty_scholarship/1847
{"title":"Economic Crises and the Integration of Law and Finance: The Impact of Volatility Spikes","authors":"Edward G. Fox, R. Gilson, M. Fox","doi":"10.7916/D8W9598D","DOIUrl":"https://doi.org/10.7916/D8W9598D","url":null,"abstract":"Recommended Citation Edward G. Fox, Merritt B. Fox & Ronald J. Gilson, Economic Crisis and the Integration of Law and Finance: The Impact of Volatility Spikes, COLUMBIA LAW REVIEW, VOL. 116, P. 325, 2016; EUROPEAN CORPORATE GOVERNANCE INSTITUTE (ECGI) LAW WORKING PAPER NO. 243/2014; STANFORD LAW & ECONOMICS OLIN WORKING PAPER NO. 460; ROCK CENTER FOR CORPORATE GOVERNANCE AT STANFORD UNIVERSITY WORKING PAPER NO. 173; COLUMBIA LAW & ECONOMICS WORKING PAPER NO. 468 (2014). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1847","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2016-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71368527","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Essay uses Peter Strauss’s work as a springboard to explore the particularly precarious position of the agencies charged with promulgating science-intensive rules (“expert agencies”) with respect to presidential oversight. Over the last three decades, agencies promulgating science-intensive rules have worked to enhance the accountability and scientific credibility of their rules by developing elaborate procedures for ensuring both vigorous scientific input and public oversight. They have accomplished this by deploying multiple rounds of public comment on their science-policy choices, soliciting rigorous scientific peer review, inviting dissent, and explaining methods and choices. Yet, at the same time that these expert agencies work to establish more rigorous decision processes grounded in both science and public review, the White House, primarily through its Office of Information and Regulatory Affairs (OIRA), appears to be undermining the agencies’ efforts through its largely nontransparent oversight process. In a number of rule settings, OIRA suggests dozens of intricate changes outside of the agencies’ rigorous deliberative processes that, while presumably intended to advance larger policy preferences, also involve changes to the agencies’ supporting, technical explanations. Even more problematic, most and sometimes all of these changes are made invisibly, often without leaving fingerprints and almost always without providing any supporting explanation or evidence.While in theory the expert agency and White House review should make a mutually-beneficial team - each bringing important, but differing perspectives to bear on science-intensive rules - in practice the White House’s secretive interventions threaten to undermine the legitimacy of both institutional processes simultaneously. The end result is both a weakened expert agency model and a more institutionally tenuous presidential review. The Essay concludes with a proposal for reformed institutional design.
{"title":"A Place for Agency Expertise: Reconciling Agency Expertise with Presidential Power","authors":"W. Wagner","doi":"10.15781/T2K672","DOIUrl":"https://doi.org/10.15781/T2K672","url":null,"abstract":"This Essay uses Peter Strauss’s work as a springboard to explore the particularly precarious position of the agencies charged with promulgating science-intensive rules (“expert agencies”) with respect to presidential oversight. Over the last three decades, agencies promulgating science-intensive rules have worked to enhance the accountability and scientific credibility of their rules by developing elaborate procedures for ensuring both vigorous scientific input and public oversight. They have accomplished this by deploying multiple rounds of public comment on their science-policy choices, soliciting rigorous scientific peer review, inviting dissent, and explaining methods and choices. Yet, at the same time that these expert agencies work to establish more rigorous decision processes grounded in both science and public review, the White House, primarily through its Office of Information and Regulatory Affairs (OIRA), appears to be undermining the agencies’ efforts through its largely nontransparent oversight process. In a number of rule settings, OIRA suggests dozens of intricate changes outside of the agencies’ rigorous deliberative processes that, while presumably intended to advance larger policy preferences, also involve changes to the agencies’ supporting, technical explanations. Even more problematic, most and sometimes all of these changes are made invisibly, often without leaving fingerprints and almost always without providing any supporting explanation or evidence.While in theory the expert agency and White House review should make a mutually-beneficial team - each bringing important, but differing perspectives to bear on science-intensive rules - in practice the White House’s secretive interventions threaten to undermine the legitimacy of both institutional processes simultaneously. The end result is both a weakened expert agency model and a more institutionally tenuous presidential review. The Essay concludes with a proposal for reformed institutional design.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2015-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67097351","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly convincing. Through a close examination of the sex discrimination argument’s evanescence in contemporary marriage litigation, I draw lessons about how and why arguments become risky in social justice cases and whether they should be made nonetheless. This context is particularly fruitful because some judges, advocates and scholars find it “obviously correct” that laws excluding same-sex couples from marriage discriminate facially based on sex or impose sex stereotypes. Yet advocates have tended to minimize these arguments and most judges either sidestep or go out of their way to reject them.Certain kinds of arguments, including the sex discrimination argument in marriage cases, turn out to pose greater risks than others because they ask decisionmakers to confront long-settled social hierarchies and norms, such as those associated with gender roles. As a result, they risk inciting Burkean anxieties about the dangers of non-incremental change. Arguments that ask less of decisionmakers, such as those about animus associated with a particular enactment – or that have a more limited reach, such as heightened scrutiny for sexual orientation at a time when few explicitly antigay laws remain – are less likely to provoke that discomfort. Moreover, a win on these narrower arguments can effectively erode stereotypes and norms underlying a challenged law or social policy. In marriage cases, for example, a pro-equality ruling helps call longstanding marital gender roles into question even if the court’s decision never mentions sex discrimination. Still, risky arguments add value within litigation by powerfully calling attention to deep problems that underlie a challenged law. Through close study of these costs and benefits, the risky argument frame advanced here aims to illuminate the complex dynamics of argumentation in the litigation and adjudication of social justice cases.
{"title":"Risky Arguments in Social - Justice Litigation: The Case of Sex Discrimination and Marriage Equality","authors":"Suzanne B. Goldberg","doi":"10.2139/SSRN.2199964","DOIUrl":"https://doi.org/10.2139/SSRN.2199964","url":null,"abstract":"This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly convincing. Through a close examination of the sex discrimination argument’s evanescence in contemporary marriage litigation, I draw lessons about how and why arguments become risky in social justice cases and whether they should be made nonetheless. This context is particularly fruitful because some judges, advocates and scholars find it “obviously correct” that laws excluding same-sex couples from marriage discriminate facially based on sex or impose sex stereotypes. Yet advocates have tended to minimize these arguments and most judges either sidestep or go out of their way to reject them.Certain kinds of arguments, including the sex discrimination argument in marriage cases, turn out to pose greater risks than others because they ask decisionmakers to confront long-settled social hierarchies and norms, such as those associated with gender roles. As a result, they risk inciting Burkean anxieties about the dangers of non-incremental change. Arguments that ask less of decisionmakers, such as those about animus associated with a particular enactment – or that have a more limited reach, such as heightened scrutiny for sexual orientation at a time when few explicitly antigay laws remain – are less likely to provoke that discomfort. Moreover, a win on these narrower arguments can effectively erode stereotypes and norms underlying a challenged law or social policy. In marriage cases, for example, a pro-equality ruling helps call longstanding marital gender roles into question even if the court’s decision never mentions sex discrimination. Still, risky arguments add value within litigation by powerfully calling attention to deep problems that underlie a challenged law. Through close study of these costs and benefits, the risky argument frame advanced here aims to illuminate the complex dynamics of argumentation in the litigation and adjudication of social justice cases.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67980877","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The past decade has witnessed a dramatic change in public attitudes and legal status for same-sex couples who wish to marry. These events demonstrate that the legal conception of the family is no longer limited to traditional marriage. They also raise the possibility that other relationships — cohabiting couples and their children, voluntary kin groups, multigenerational groups and polygamists — might gain legal recognition as families. This Article probes the challenges faced by aspiring families and the means by which they could attain their goal. It builds on the premise that the state remains committed to social welfare criteria for granting family status, recognizing as families only those categories of relationships that embody a long-term commitment to mutual care and interdependence, and, on that basis, function well to satisfy members’ dependency needs. Groups aspiring to legal recognition as families must overcome substantial uncertainties as to whether they meet these criteria if they are to obtain the rights and obligations of legally recognized families. Uncertainty contributes to a lack of confidence in the durability and effectiveness of novel relationships on the part of the aspiring family members themselves, the larger social community and, ultimately, the state. We develop an informal model to illustrate the nature of these uncertainties, as well as the solutions to the possible obstacles they create. Using a hypothetical group consisting of two adult men and two adult women in a polyamorous relationship, we show how legal family status for novel groups can result from an evolutionary process for overcoming uncertainties that uses collaborative techniques to build trust and confidence. Collaborative processes have been shown in other settings to be effective mechanisms for creating trust incrementally and thus appear to offer a way forward in the evolution of other novel families. We show that the successful movement to achieve marriage rights for LBGT couples has roughly conformed to the collaborative processes we propose, and the absence of meaningful collaboration is one factor explaining the stasis that characterizes the status of unmarried cohabitants. This evidence supports the prediction that the future progress of other aspiring family groups toward attaining legal status may depend on how well they are able to engage the collaborative mechanisms that smooth the path from contract to status.
{"title":"From Contract to Status: Collaboration and the Evolution of Novel Family Relationships","authors":"Elizabeth S. Scott, R. Scott","doi":"10.7916/D8ST7PJJ","DOIUrl":"https://doi.org/10.7916/D8ST7PJJ","url":null,"abstract":"The past decade has witnessed a dramatic change in public attitudes and legal status for same-sex couples who wish to marry. These events demonstrate that the legal conception of the family is no longer limited to traditional marriage. They also raise the possibility that other relationships — cohabiting couples and their children, voluntary kin groups, multigenerational groups and polygamists — might gain legal recognition as families. This Article probes the challenges faced by aspiring families and the means by which they could attain their goal. It builds on the premise that the state remains committed to social welfare criteria for granting family status, recognizing as families only those categories of relationships that embody a long-term commitment to mutual care and interdependence, and, on that basis, function well to satisfy members’ dependency needs. Groups aspiring to legal recognition as families must overcome substantial uncertainties as to whether they meet these criteria if they are to obtain the rights and obligations of legally recognized families. Uncertainty contributes to a lack of confidence in the durability and effectiveness of novel relationships on the part of the aspiring family members themselves, the larger social community and, ultimately, the state. We develop an informal model to illustrate the nature of these uncertainties, as well as the solutions to the possible obstacles they create. Using a hypothetical group consisting of two adult men and two adult women in a polyamorous relationship, we show how legal family status for novel groups can result from an evolutionary process for overcoming uncertainties that uses collaborative techniques to build trust and confidence. Collaborative processes have been shown in other settings to be effective mechanisms for creating trust incrementally and thus appear to offer a way forward in the evolution of other novel families. We show that the successful movement to achieve marriage rights for LBGT couples has roughly conformed to the collaborative processes we propose, and the absence of meaningful collaboration is one factor explaining the stasis that characterizes the status of unmarried cohabitants. This evidence supports the prediction that the future progress of other aspiring family groups toward attaining legal status may depend on how well they are able to engage the collaborative mechanisms that smooth the path from contract to status.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2014-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71368098","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Tort law is often seen as a tool for protecting privacy. But tort law can also diminish privacy, by pressuring defendants to disclose sensitive information, to gather such information, and to install comprehensive surveillance. And such pressure is growing, as technology makes surveillance and other information gathering more cost-effective and thus more likely to be seen as part of defendants’ obligation of “reasonable care.” Moreover, these tort law rules can increase government surveillance power as well as demanding greater surveillance by private entities. Among other things, the NSA PRISM story shows how easily a surveillance database in private hands can become a surveillance database in government hands. This article aims to provide a legal map of this area, and to discuss which legal institutions -- juries, judges, or legislatures -- should resolve the privacy vs. safety questions that routinely arise within tort law.
{"title":"Tort law vs. privacy","authors":"E. Volokh","doi":"10.2139/SSRN.2359287","DOIUrl":"https://doi.org/10.2139/SSRN.2359287","url":null,"abstract":"Tort law is often seen as a tool for protecting privacy. But tort law can also diminish privacy, by pressuring defendants to disclose sensitive information, to gather such information, and to install comprehensive surveillance. And such pressure is growing, as technology makes surveillance and other information gathering more cost-effective and thus more likely to be seen as part of defendants’ obligation of “reasonable care.” Moreover, these tort law rules can increase government surveillance power as well as demanding greater surveillance by private entities. Among other things, the NSA PRISM story shows how easily a surveillance database in private hands can become a surveillance database in government hands. This article aims to provide a legal map of this area, and to discuss which legal institutions -- juries, judges, or legislatures -- should resolve the privacy vs. safety questions that routinely arise within tort law.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2013-11-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68138481","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In both federal Indian law and the law regarding United States territories, the Supreme Court in recent decades has shown increasing skepticism about previously tolerated elements of constitutionally unregulated local governmental authority. This Article proposes a framework for resolving constitutional questions raised by the Court’s recent cases in these areas. Focusing on the criminal context, where the stakes are highest both for individual defendants and for the affected communities, this Article considers three issues: (1) whether and under what circumstances Congress may confer criminal jurisdiction on tribal and territorial governments without requiring that those governments’ enforcement decisions be subject to federal executive supervision; (2) whether double jeopardy should bar successive prosecution by both the federal government and a tribal or territorial government exercising federally authorized criminal jurisdiction; and (3) what, if any, constitutional procedural protections apply when a tribal or territorial government exercises criminal jurisdiction pursuant to such federal authorization. Through close examination of these three questions, this Article aims to show that framing the analysis in terms of divided sovereignty, and recognizing the close parallels between tribal, territorial, and related federal-state contexts, may yield the most attractive resolutions that are viable in light of the Supreme Court’s recent decisions. This Article contrasts this approach with an alternative framework that would organize the analysis around a distinction between “inherent” and “delegated” governmental authority.
{"title":"Dividing Sovereignty in Tribal and Territorial Criminal Jurisdiction","authors":"Zachary S. Price","doi":"10.2139/SSRN.2359689","DOIUrl":"https://doi.org/10.2139/SSRN.2359689","url":null,"abstract":"In both federal Indian law and the law regarding United States territories, the Supreme Court in recent decades has shown increasing skepticism about previously tolerated elements of constitutionally unregulated local governmental authority. This Article proposes a framework for resolving constitutional questions raised by the Court’s recent cases in these areas. Focusing on the criminal context, where the stakes are highest both for individual defendants and for the affected communities, this Article considers three issues: (1) whether and under what circumstances Congress may confer criminal jurisdiction on tribal and territorial governments without requiring that those governments’ enforcement decisions be subject to federal executive supervision; (2) whether double jeopardy should bar successive prosecution by both the federal government and a tribal or territorial government exercising federally authorized criminal jurisdiction; and (3) what, if any, constitutional procedural protections apply when a tribal or territorial government exercises criminal jurisdiction pursuant to such federal authorization. Through close examination of these three questions, this Article aims to show that framing the analysis in terms of divided sovereignty, and recognizing the close parallels between tribal, territorial, and related federal-state contexts, may yield the most attractive resolutions that are viable in light of the Supreme Court’s recent decisions. This Article contrasts this approach with an alternative framework that would organize the analysis around a distinction between “inherent” and “delegated” governmental authority.","PeriodicalId":51408,"journal":{"name":"Columbia Law Review","volume":null,"pages":null},"PeriodicalIF":2.9,"publicationDate":"2013-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68138874","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"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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