A solution is needed for the gun violence epidemic, where approximately 15,000 innocent persons are shot to death each year. Close analysis reveals that meaningful legislative solutions have failed to move forward. The reason for this failure is the National Rifle Association’s (NRA) stranglehold on federal and state legislators. This Article explores a nonlegislative solution—a tort suit aimed at obtaining compensation for the shooting victims and returning the NRA to its original purpose. It will examine conduct actions by the NRA and consider the NRA’s foundational defenses: failure to engage in any “imminent lawless action,” the First Amendment, the Second Amendment, and proximate cause. It will also consider the five tort causes of action: (1) aiding and abetting, (2) civil conspiracy, (3) strict liability, (4) the intentional infliction of emotional distress, and (5) negligence.
{"title":"Suing The NRA for Damages","authors":"Frank J. Vandall","doi":"10.2139/ssrn.3630429","DOIUrl":"https://doi.org/10.2139/ssrn.3630429","url":null,"abstract":"A solution is needed for the gun violence epidemic, where approximately 15,000 innocent persons are shot to death each year. Close analysis reveals that meaningful legislative solutions have failed to move forward. The reason for this failure is the National Rifle Association’s (NRA) stranglehold on federal and state legislators. This Article explores a nonlegislative solution—a tort suit aimed at obtaining compensation for the shooting victims and returning the NRA to its original purpose. It will examine conduct actions by the NRA and consider the NRA’s foundational defenses: failure to engage in any “imminent lawless action,” the First Amendment, the Second Amendment, and proximate cause. It will also consider the five tort causes of action: (1) aiding and abetting, (2) civil conspiracy, (3) strict liability, (4) the intentional infliction of emotional distress, and (5) negligence.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"69 1","pages":"1077"},"PeriodicalIF":0.0,"publicationDate":"2020-01-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48824901","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}
Personal jurisdiction has always constrained plaintiffs’ access to courts; recent Supreme Court decisions impose even more severe limits, especially in suits against nonresident foreign corporations. These limitations are magnified by the standard understanding that the relevant forum for purposes of the personal jurisdiction calculus is the state. The Court’s Fourteenth Amendment jurisprudence relies on the state as the relevant forum, and the Federal Rules of Civil Procedure in the typical case direct a federal court to apply the same test as would a court of the state in which it sits. This Article takes on the challenge of exploring the possibility of expanding the use of national personal jurisdiction, and thus revitalizing plaintiffs’ access to courts. In so doing, it undertakes three distinct tasks. First, it argues first that there is no Fifth Amendment Due Process barrier to national personal jurisdiction. Second, it considers the viability of national personal jurisdiction as to various categories of claims, brought in federal court and state court. It argues that Congress has the power to introduce national personal jurisdiction as to all claims brought in the federal courts, but that Congress lacks authority to introduce national personal jurisdiction as to any claims brought in the state courts. However, Congress could open the federal courthouse doors wider to claims where national personal jurisdiction is deemed appropriate. Third, the Article considers what steps Congress is free to utilize in order to implement national personal jurisdiction. While two steps are obvious—Congress can enact statutory authority and can convey authority on a delegate—the Article focuses on a more controversial path to national personal jurisdiction: the common law. It argues that, while federal courts may enjoy interstitial common-law powers in this area, they likely do not have broad powers to generate new instances of national personal jurisdiction.
{"title":"National Personal Jurisdiction","authors":"J. Nash","doi":"10.2139/SSRN.3119383","DOIUrl":"https://doi.org/10.2139/SSRN.3119383","url":null,"abstract":"Personal jurisdiction has always constrained plaintiffs’ access to courts; recent Supreme Court decisions impose even more severe limits, especially in suits against nonresident foreign corporations. These limitations are magnified by the standard understanding that the relevant forum for purposes of the personal jurisdiction calculus is the state. The Court’s Fourteenth Amendment jurisprudence relies on the state as the relevant forum, and the Federal Rules of Civil Procedure in the typical case direct a federal court to apply the same test as would a court of the state in which it sits. \u0000 \u0000This Article takes on the challenge of exploring the possibility of expanding the use of national personal jurisdiction, and thus revitalizing plaintiffs’ access to courts. In so doing, it undertakes three distinct tasks. First, it argues first that there is no Fifth Amendment Due Process barrier to national personal jurisdiction. Second, it considers the viability of national personal jurisdiction as to various categories of claims, brought in federal court and state court. It argues that Congress has the power to introduce national personal jurisdiction as to all claims brought in the federal courts, but that Congress lacks authority to introduce national personal jurisdiction as to any claims brought in the state courts. However, Congress could open the federal courthouse doors wider to claims where national personal jurisdiction is deemed appropriate. Third, the Article considers what steps Congress is free to utilize in order to implement national personal jurisdiction. While two steps are obvious—Congress can enact statutory authority and can convey authority on a delegate—the Article focuses on a more controversial path to national personal jurisdiction: the common law. It argues that, while federal courts may enjoy interstitial common-law powers in this area, they likely do not have broad powers to generate new instances of national personal jurisdiction.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"68 1","pages":"509"},"PeriodicalIF":0.0,"publicationDate":"2019-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43176424","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Data analysis has transformed the legal academy and is now poised to do the same to constitutional law. In the latest round of partisan gerrymandering litigation, lower courts have used quantitative tests to define rights violations and strike down legislative districtings across the country. The Supreme Court’s most recent opinion on partisan gerrymandering, Gill v. Whitford, hinted that quantitative tests may yet define the constitutionality of partisan gerrymandering. Statistical thresholds thus could be enshrined as constitutional protections and courts recast as agents of discretionary policy.This Article describes how excessive dependence on metrics transforms judicial decision-making and undermines rights enforcement. Courts enforce constitutional law to ensure governmental compliance with rights, not to advance alternative policy arrangements. Yet the core of rights is moral principle, not descriptive conditions in the world. If quantitative outcomes are used to define rights, the moral character of judicial rights enforcement is undermined, and courts act as quasi-regulatory entities that compete with democratically elected branches. Arguably the most condemned decision of the twentieth century, Lochner, reflected such a quasi-regulatory approach to rights enforcement; excessive reliance on statistics threatens to repeat that mistake.The law of partisan gerrymandering needs a new principle, not new metrics. The best principle to identify partisan gerrymandering is the right to fair representation, which is violated when legislatures seize partisan advantage in democratic process. Quantitative analysis should have the sole function of proving that alleged partisan gerrymanders seek such advantage.This Article thus identifies a novel and troubling trend in constitutional law and describes how it dominates a topic of immediate practical importance. It then offers a general framework for conceptualizing rights protection and applies it to this pressing doctrinal issue.
数据分析已经改变了法律学院，现在正准备对宪法做同样的事情。在最新一轮党派不公正划分选区的诉讼中，下级法院使用定量测试来界定侵犯权利的行为，并在全国范围内取消立法选区。最高法院在吉尔诉惠特福德案(Gill v. Whitford)中关于党派不公正划分选区的最新意见暗示，定量测试可能还没有确定党派不公正划分选区是否符合宪法。因此，统计阈值可以被奉为宪法保护，法院可以被重塑为自由裁量政策的代理人。本文描述了过度依赖指标如何改变司法决策并破坏权利执行。法院执行宪法法律是为了确保政府遵守权利，而不是推进替代政策安排。然而，权利的核心是道德原则，而不是世界上的描述性条件。如果用量化结果来定义权利，司法权利执行的道德品质就会受到损害，法院就会成为与民主选举部门竞争的准监管实体。可以说，20世纪最受谴责的判决洛克纳案(Lochner)反映了这种准监管的权利执行方式;过度依赖统计数据可能会重蹈覆辙。党派不公正划分选区的法律需要一个新的原则，而不是新的衡量标准。确定党派不公正划分的最佳原则是公平代表权，立法机关在民主过程中抓住党派优势，就违反了公平代表权。定量分析的唯一作用应该是证明所谓的党派不公正划分选区者寻求这种优势。因此，本文确定了宪法中一个新颖而令人不安的趋势，并描述了它如何主导一个具有直接实际重要性的主题。然后，它提供了一个概念化权利保护的总体框架，并将其应用于这一紧迫的理论问题。
{"title":"Partisan Gerrymandering and the Constitutionalization of Statistics","authors":"Jacob Eisler","doi":"10.2139/SSRN.3145191","DOIUrl":"https://doi.org/10.2139/SSRN.3145191","url":null,"abstract":"Data analysis has transformed the legal academy and is now poised to do the same to constitutional law. In the latest round of partisan gerrymandering litigation, lower courts have used quantitative tests to define rights violations and strike down legislative districtings across the country. The Supreme Court’s most recent opinion on partisan gerrymandering, Gill v. Whitford, hinted that quantitative tests may yet define the constitutionality of partisan gerrymandering. Statistical thresholds thus could be enshrined as constitutional protections and courts recast as agents of discretionary policy.This Article describes how excessive dependence on metrics transforms judicial decision-making and undermines rights enforcement. Courts enforce constitutional law to ensure governmental compliance with rights, not to advance alternative policy arrangements. Yet the core of rights is moral principle, not descriptive conditions in the world. If quantitative outcomes are used to define rights, the moral character of judicial rights enforcement is undermined, and courts act as quasi-regulatory entities that compete with democratically elected branches. Arguably the most condemned decision of the twentieth century, Lochner, reflected such a quasi-regulatory approach to rights enforcement; excessive reliance on statistics threatens to repeat that mistake.The law of partisan gerrymandering needs a new principle, not new metrics. The best principle to identify partisan gerrymandering is the right to fair representation, which is violated when legislatures seize partisan advantage in democratic process. Quantitative analysis should have the sole function of proving that alleged partisan gerrymanders seek such advantage.This Article thus identifies a novel and troubling trend in constitutional law and describes how it dominates a topic of immediate practical importance. It then offers a general framework for conceptualizing rights protection and applies it to this pressing doctrinal issue.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"68 1","pages":"979"},"PeriodicalIF":0.0,"publicationDate":"2018-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46951560","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"THE CASE FOR STREAMLINING EMERGENCY DECLARATION AUTHORITIES AND ADAPTING LEGAL REQUIREMENTS TO EVER-CHANGING PUBLIC HEALTH THREATS.","authors":"Gregory Sunshine","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"67 3","pages":"397-414"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5956522/pdf/nihms959836.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"36114500","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article addresses the rapid growth of what the military and intelligence community refer to as “biometric-enabled intelligence.” This newly emerging intelligence system is reliant upon biometric databases — for example, digitalized collections of scanned fingerprints and irises, digital photographs for facial recognition technology, and DNA. This Article introduces the term “biometric cyberintelligence” to describe more accurately the manner in which this new tool is dependent upon cybersurveillance and big data’s mass-integrative systems.To better understand the legal implications of biometric cyberintelligence, this Article advances three primary claims. First, it argues that the technological and programmatic architecture of biometric cyberintelligence can be embedded within the data collection and data analysis protocols of civilian governance and domestic law enforcement activities. Next, to demonstrate the potential lethality of this emerging technological and policy development, this Article illustrates how biometric data may be increasingly integrated into drone weaponry, including targeted killing and drone strike technologies. Finally, this Article argues that the Posse Comitatus Act of 1878, designed to limit the deployment of federal military resources in the service of domestic policies, may be impotent in light of the growth of cybersurveillance.Maintaining strict separation of data between military and intelligence operations on the one hand, and civilian, homeland security, and domestic law enforcement agencies on the other hand, is increasingly difficult as cooperative data sharing increases. The Posse Comitatus Act and constitutional protections such as the Fourth Amendment’s privacy jurisprudence, therefore, must be reinforced in the digital age in order to appropriately protect citizens from militarized cyberpolicing, i.e., the blending of military/foreign intelligence tools and operations and homeland security/domestic law enforcement tools and operations. The Article concludes that, as of yet, neither statutory nor constitutional protections have evolved sufficiently to cover the unprecedented surveillance harms posed by the migration of biometric cyberintelligence from foreign to domestic use.
本文讨论了军事和情报界所称的“生物识别智能”的快速增长。这个新兴的情报系统依赖于生物识别数据库，例如，扫描指纹和虹膜的数字化集合，面部识别技术的数字照片，以及DNA。本文引入了术语“生物识别网络智能”，以更准确地描述这种新工具依赖于网络监控和大数据的大规模整合系统的方式。为了更好地理解生物识别网络智能的法律含义，本文提出了三个主要主张。首先，它认为生物识别网络智能的技术和程序架构可以嵌入到公民治理和国内执法活动的数据收集和数据分析协议中。接下来，为了展示这种新兴技术和政策发展的潜在杀伤力，本文说明了生物识别数据如何越来越多地集成到无人机武器中，包括定点杀伤和无人机打击技术。最后，本文认为，1878年《军务委员会法》(Posse Comitatus Act)旨在限制联邦军事资源为国内政策服务的部署，但鉴于网络监控的增长，该法案可能无能为力。随着合作数据共享的增加，一方面在军事和情报行动之间保持严格的数据分离，另一方面在民用、国土安全和国内执法机构之间保持严格的数据分离越来越困难。因此，在数字时代，必须加强《治安委员会法》(Posse Comitatus Act)和宪法保护，如第四修正案的隐私判例，以适当保护公民免受军事化网络警务的影响，即军事/外国情报工具和行动与国土安全/国内执法工具和行动的混合。文章的结论是，到目前为止，法律和宪法保护都没有发展到足以覆盖生物识别网络情报从国外转移到国内使用所带来的前所未有的监视危害。
{"title":"Biometric Cyberintelligence and the Posse Comitatus Act","authors":"Margaret Hu","doi":"10.2139/SSRN.2886575","DOIUrl":"https://doi.org/10.2139/SSRN.2886575","url":null,"abstract":"This Article addresses the rapid growth of what the military and intelligence community refer to as “biometric-enabled intelligence.” This newly emerging intelligence system is reliant upon biometric databases — for example, digitalized collections of scanned fingerprints and irises, digital photographs for facial recognition technology, and DNA. This Article introduces the term “biometric cyberintelligence” to describe more accurately the manner in which this new tool is dependent upon cybersurveillance and big data’s mass-integrative systems.To better understand the legal implications of biometric cyberintelligence, this Article advances three primary claims. First, it argues that the technological and programmatic architecture of biometric cyberintelligence can be embedded within the data collection and data analysis protocols of civilian governance and domestic law enforcement activities. Next, to demonstrate the potential lethality of this emerging technological and policy development, this Article illustrates how biometric data may be increasingly integrated into drone weaponry, including targeted killing and drone strike technologies. Finally, this Article argues that the Posse Comitatus Act of 1878, designed to limit the deployment of federal military resources in the service of domestic policies, may be impotent in light of the growth of cybersurveillance.Maintaining strict separation of data between military and intelligence operations on the one hand, and civilian, homeland security, and domestic law enforcement agencies on the other hand, is increasingly difficult as cooperative data sharing increases. The Posse Comitatus Act and constitutional protections such as the Fourth Amendment’s privacy jurisprudence, therefore, must be reinforced in the digital age in order to appropriately protect citizens from militarized cyberpolicing, i.e., the blending of military/foreign intelligence tools and operations and homeland security/domestic law enforcement tools and operations. The Article concludes that, as of yet, neither statutory nor constitutional protections have evolved sufficiently to cover the unprecedented surveillance harms posed by the migration of biometric cyberintelligence from foreign to domestic use.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"66 1","pages":"697"},"PeriodicalIF":0.0,"publicationDate":"2016-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68418170","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-02-08DOI: 10.1056/nejm196202152660715
Jane R. Bambauer
This short Essay explores when ignorance can be supported or even coerced by law, and when it cannot. In the end, although freedom from thought has much to offer to the development of privacy and dignitary rights, interests in self-ignorance are better handled through norms than through law. Like other forms of privacy, First Amendment commitments are likely to frustrate legal efforts to support or coerce self-ignorance. If a speaker wishes to disclose information, the government is unlikely to be able to interfere with that disclosure unless the speaker’s interests are demonstrably weak. However, when both the speaker and the listener prefer silence, government compulsion of information disclosure will offend privacy and First Amendment principles alike.
{"title":"Freedom from Thought","authors":"Jane R. Bambauer","doi":"10.1056/nejm196202152660715","DOIUrl":"https://doi.org/10.1056/nejm196202152660715","url":null,"abstract":"This short Essay explores when ignorance can be supported or even coerced by law, and when it cannot. In the end, although freedom from thought has much to offer to the development of privacy and dignitary rights, interests in self-ignorance are better handled through norms than through law. Like other forms of privacy, First Amendment commitments are likely to frustrate legal efforts to support or coerce self-ignorance. If a speaker wishes to disclose information, the government is unlikely to be able to interfere with that disclosure unless the speaker’s interests are demonstrably weak. However, when both the speaker and the listener prefer silence, government compulsion of information disclosure will offend privacy and First Amendment principles alike.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"48 1","pages":"219"},"PeriodicalIF":0.0,"publicationDate":"2016-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1056/nejm196202152660715","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"58206234","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}
Law enforcement access to personal data presents a paradox at the heart of debates between the European Union (EU) and the United States about privacy protections. On the one hand, the comprehensive privacy regime in the EU contains many requirements that do not apply in the United States-the EU is "stricter" than the United States in applying requirements that do not exist in the latter. On the other hand, the United States also sets requirements that do not exist in the EU, such as the Fourth Amendment requirement that a warrant be signed by a judge upon a finding of probable cause. Thus, both are stricter in important ways when setting standards for law enforcement access to personal data. The fact that both sides are stricter in significant respects is important to two distinct topics: how to reform the system of Mutual Legal Assistance (MLA), and whether the United States provides "adequate" protection for personal data under EU law, and thus is an appropriate destination for data flows from the EU.The relative strictness of standards for law enforcement access is central to understanding current obstacles to reforming the MLA system, the mechanism for sharing law enforcement evidence held in one country for use in criminal investigations in a different country. Our research team has been writing a series of articles about MLA reform.1 The topic has become increasingly important in recent years-globalized communications mean that e-mails, social network data, and other evidence for criminal investigations are often held in a different country. In the course of studying obstacles to effective reform, we have come to believe that the fact that both the EU and the United States provide stricter privacy protections is salient but little understood-each side is reluctant to compromise on a new approach to the extent that there would be a weakening of some specific safeguards that currently exist in their respective jurisdictions. We hope that a fuller understanding of the relative strictness of both sides will enable a more fruitful discussion of possible paths to MLA reform.The relative strictness of both the EU and the United States is also important to a second topic, the current litigation and debates about whether the United States provides "adequate" protection of privacy, and thus is a lawful destination for flows of personal data from the EU.2 Under the EU Data Protection Directive, which went into effect in 1998,3 transfers of personal data from EU Member States to other countries, such as the United States, are generally permitted only if the recipient jurisdiction has "adequate" protections.4 From its negotiation in 2000 until 2015, a major legal basis for such transfers was the EU/U.S. Safe Harbor, under which participating companies could lawfully send personal data to the United States.5 In 2015, the European Court of Justice struck down the Safe Harbor for lacking adequacy in Schrems v. Data Protection Commissioner.6 A related tran
{"title":"How Both the Eu and the U.S. Are \"Stricter\" Than Each Other for the Privacy of Government Requests for Information","authors":"Peter P. Swire, DeBrae Kennedy-Mayo","doi":"10.2139/SSRN.2920748","DOIUrl":"https://doi.org/10.2139/SSRN.2920748","url":null,"abstract":"Law enforcement access to personal data presents a paradox at the heart of debates between the European Union (EU) and the United States about privacy protections. On the one hand, the comprehensive privacy regime in the EU contains many requirements that do not apply in the United States-the EU is \"stricter\" than the United States in applying requirements that do not exist in the latter. On the other hand, the United States also sets requirements that do not exist in the EU, such as the Fourth Amendment requirement that a warrant be signed by a judge upon a finding of probable cause. Thus, both are stricter in important ways when setting standards for law enforcement access to personal data. The fact that both sides are stricter in significant respects is important to two distinct topics: how to reform the system of Mutual Legal Assistance (MLA), and whether the United States provides \"adequate\" protection for personal data under EU law, and thus is an appropriate destination for data flows from the EU.The relative strictness of standards for law enforcement access is central to understanding current obstacles to reforming the MLA system, the mechanism for sharing law enforcement evidence held in one country for use in criminal investigations in a different country. Our research team has been writing a series of articles about MLA reform.1 The topic has become increasingly important in recent years-globalized communications mean that e-mails, social network data, and other evidence for criminal investigations are often held in a different country. In the course of studying obstacles to effective reform, we have come to believe that the fact that both the EU and the United States provide stricter privacy protections is salient but little understood-each side is reluctant to compromise on a new approach to the extent that there would be a weakening of some specific safeguards that currently exist in their respective jurisdictions. We hope that a fuller understanding of the relative strictness of both sides will enable a more fruitful discussion of possible paths to MLA reform.The relative strictness of both the EU and the United States is also important to a second topic, the current litigation and debates about whether the United States provides \"adequate\" protection of privacy, and thus is a lawful destination for flows of personal data from the EU.2 Under the EU Data Protection Directive, which went into effect in 1998,3 transfers of personal data from EU Member States to other countries, such as the United States, are generally permitted only if the recipient jurisdiction has \"adequate\" protections.4 From its negotiation in 2000 until 2015, a major legal basis for such transfers was the EU/U.S. Safe Harbor, under which participating companies could lawfully send personal data to the United States.5 In 2015, the European Court of Justice struck down the Safe Harbor for lacking adequacy in Schrems v. Data Protection Commissioner.6 A related tran","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"66 1","pages":"617"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68432441","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Supreme Court currently operates under the premise that if it finds one part of a law unconstitutional, it can strike down other parts as well. In NFIB v. Sebelius, four justices would have exercised this power to strike down the entire Affordable Care Act on the basis of one unconstitutional provision. But it is not clear where the Court finds this power to declare laws inseverable. And that lack of clarity has created a doctrinal muddle wherein the Court applies several inconsistent tests. In this Article, I seek to clarify the scope of the inseverability power by considering several different theories of its source. Three such theories are implicit in the current judicial doctrine and academic debate about severability: (1) that it is an equitable remedial power, akin to the power to issue a civil injunction, (2) that it is a form of intentionalist statutory interpretation, wherein courts strike down further provisions of a partially unconstitutional law so as to preserve the legislators’ intentions, and (3) that it is a judicial contract remedy applied to legislative deals. The Article explores these three theories, teasing out their respective logics, and showing that they are all both implausibly broad and inconsistent with Article III of the Constitution. The Article then develops and defends a fourth, narrower theory: that a court can declare a statute inseverable only where the legislature has made one part of the statute conditional on the continued validity of another. Such conditionality can most easily be found through explicit inseverability clauses. But it can also be found implicitly, where severing a provision would make nonsense of a statute’s language, or where otherwise valid parts of a statute cannot have legal effect or do not serve any purpose without the unconstitutional provision. The main cost of this theory is that it only permits inseverability in limited circumstances, and does not allow courts to rewrite statutes so as to avoid the perverse consequences of judicial review. The benefits are that the theory is consistent with Article III, and that it prevents judges from acting like legislators. Two further implications follow from the conditionality theory: that there must be a party with standing to challenge an inseverable provision before a federal court can strike it down; and that the proper unit of analysis for severability questions is the entire legislative code (rather than a single act or bill).
{"title":"Severability as Conditionality","authors":"Eric S. Fish","doi":"10.2139/SSRN.2395650","DOIUrl":"https://doi.org/10.2139/SSRN.2395650","url":null,"abstract":"The Supreme Court currently operates under the premise that if it finds one part of a law unconstitutional, it can strike down other parts as well. In NFIB v. Sebelius, four justices would have exercised this power to strike down the entire Affordable Care Act on the basis of one unconstitutional provision. But it is not clear where the Court finds this power to declare laws inseverable. And that lack of clarity has created a doctrinal muddle wherein the Court applies several inconsistent tests. In this Article, I seek to clarify the scope of the inseverability power by considering several different theories of its source. Three such theories are implicit in the current judicial doctrine and academic debate about severability: (1) that it is an equitable remedial power, akin to the power to issue a civil injunction, (2) that it is a form of intentionalist statutory interpretation, wherein courts strike down further provisions of a partially unconstitutional law so as to preserve the legislators’ intentions, and (3) that it is a judicial contract remedy applied to legislative deals. The Article explores these three theories, teasing out their respective logics, and showing that they are all both implausibly broad and inconsistent with Article III of the Constitution. The Article then develops and defends a fourth, narrower theory: that a court can declare a statute inseverable only where the legislature has made one part of the statute conditional on the continued validity of another. Such conditionality can most easily be found through explicit inseverability clauses. But it can also be found implicitly, where severing a provision would make nonsense of a statute’s language, or where otherwise valid parts of a statute cannot have legal effect or do not serve any purpose without the unconstitutional provision. The main cost of this theory is that it only permits inseverability in limited circumstances, and does not allow courts to rewrite statutes so as to avoid the perverse consequences of judicial review. The benefits are that the theory is consistent with Article III, and that it prevents judges from acting like legislators. Two further implications follow from the conditionality theory: that there must be a party with standing to challenge an inseverable provision before a federal court can strike it down; and that the proper unit of analysis for severability questions is the entire legislative code (rather than a single act or bill).","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"349 1","pages":"1293"},"PeriodicalIF":0.0,"publicationDate":"2014-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68177747","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the past forty years, the U.S. Supreme Court has increasingly advanced the notion that the Fourth Amendment encompasses the common-law restrictions on searches and seizures that existed in 1791 when the Amendment was adopted. Yet, in case after case, the Court has encountered indeterminacy in the common law circa 1791. At times, the Court confronts this indeterminacy by concluding that, in the absence of a clear common-law rule, the Fourth Amendment does not govern the issue. At other times, in the face of indeterminacy, the Court falls back upon general Fourth Amendment principles. And on occasion the Court pretends that the indeterminacy does not exist. The reason for the absence of clear common-law search-and-seizure rules in 1791 is that the common law differed in important respects among the thirteen new American States. More importantly, the Anti-Federalists, those who demanded that the Bill of Rights be added to the Constitution as the price of ratification, recognized that the common law was different in every State. This differentiated common law included the common-law rights of Englishmen secured by state bills of rights. The Anti-Federalists saw the common-law, not as a fixed set of rules they were freezing in time, but as fluid, contingent, and evolving around them. Thus, if the Court is going to continue to interpret the Fourth Amendment as incorporating common-law search-and-seizure rules, it must come to terms with the fact that the common law of 1791 was viewed by a significant part of the population as contingent rather than fixed. And given that we owe the Bill of Rights to the Anti-Federalists, it makes some sense to interpret its commands in light of their view of the common law. This Article introduces a view of the Fourth Amendment – the contingent Fourth Amendment – that courts and commentators have overlooked. It asserts that we ought to conceive of our rights against unreasonable searches and seizures by federal officials as being largely contingent on state law. The only common-law rules that the Fourth Amendment freezes into the Constitution are those explicitly set forth in the Warrant Clause: rules against warrants that are general, issued on less than probable cause, or unsupported by oath or affirmation. The residuum of constitutional search-and-seizure rules are to be dictated by state law, even when it is a federal officer doing the searching or seizing. On this approach, as a matter of federal constitutional law, a federal officer is generally constrained by the search-and-seizure law of the State where a federal search or seizure occurs.
{"title":"The Contingent Fourth Amendment","authors":"M. Mannheimer","doi":"10.2139/SSRN.2366486","DOIUrl":"https://doi.org/10.2139/SSRN.2366486","url":null,"abstract":"In the past forty years, the U.S. Supreme Court has increasingly advanced the notion that the Fourth Amendment encompasses the common-law restrictions on searches and seizures that existed in 1791 when the Amendment was adopted. Yet, in case after case, the Court has encountered indeterminacy in the common law circa 1791. At times, the Court confronts this indeterminacy by concluding that, in the absence of a clear common-law rule, the Fourth Amendment does not govern the issue. At other times, in the face of indeterminacy, the Court falls back upon general Fourth Amendment principles. And on occasion the Court pretends that the indeterminacy does not exist. The reason for the absence of clear common-law search-and-seizure rules in 1791 is that the common law differed in important respects among the thirteen new American States. More importantly, the Anti-Federalists, those who demanded that the Bill of Rights be added to the Constitution as the price of ratification, recognized that the common law was different in every State. This differentiated common law included the common-law rights of Englishmen secured by state bills of rights. The Anti-Federalists saw the common-law, not as a fixed set of rules they were freezing in time, but as fluid, contingent, and evolving around them. Thus, if the Court is going to continue to interpret the Fourth Amendment as incorporating common-law search-and-seizure rules, it must come to terms with the fact that the common law of 1791 was viewed by a significant part of the population as contingent rather than fixed. And given that we owe the Bill of Rights to the Anti-Federalists, it makes some sense to interpret its commands in light of their view of the common law. This Article introduces a view of the Fourth Amendment – the contingent Fourth Amendment – that courts and commentators have overlooked. It asserts that we ought to conceive of our rights against unreasonable searches and seizures by federal officials as being largely contingent on state law. The only common-law rules that the Fourth Amendment freezes into the Constitution are those explicitly set forth in the Warrant Clause: rules against warrants that are general, issued on less than probable cause, or unsupported by oath or affirmation. The residuum of constitutional search-and-seizure rules are to be dictated by state law, even when it is a federal officer doing the searching or seizing. On this approach, as a matter of federal constitutional law, a federal officer is generally constrained by the search-and-seizure law of the State where a federal search or seizure occurs.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"64 1","pages":"1229"},"PeriodicalIF":0.0,"publicationDate":"2014-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68144821","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the wake of the terrible shootings in Newtown, Connecticut, our nation has turned its attention to school security. For example, several states have passed or are considering passing legislation that will provide new funding to schools for security equipment and law enforcement officers. Strict security measures in schools are certainly not new. In response to prior acts of school violence, many public schools for years have relied on metal detectors, random sweeps, locked gates, surveillance cameras, and law enforcement officers to promote school safety. Before policymakers and school officials invest more money in strict security measures, this Article provides additional factors that should be considered. First, drawing on recent, restricted data from the U.S. Department of Education, this Article presents an original empirical analysis revealing that low-income students and minority students are much more likely to experience intense security conditions in their schools than other students, even when taking into account neighborhood crime, school crime, and school disorder. These findings raise concerns that such inequalities may continue or worsen as policymakers provide additional funding for security measures. Second, this Article argues that strict security measures do not support long-term solutions needed to effectively prevent school violence. Indeed, strict security measures exacerbate the underlying problems by creating barriers of adversity and mistrust between students and educators. In addition, this Article offers recommendations to address the disproportionate use of security measures on low-income and minority students and to curb violence more effectively. It urges school officials and policymakers to support programs that build trust and collective responsibility instead of providing grants for strict security measures. Further, it recommends that the Department of Education’s Office of Civil Rights play a more active role in addressing the disproportionate use of strict security measures on minority students.
{"title":"Students, Security, and Race","authors":"Jason P. Nance","doi":"10.2139/SSRN.2214202","DOIUrl":"https://doi.org/10.2139/SSRN.2214202","url":null,"abstract":"In the wake of the terrible shootings in Newtown, Connecticut, our nation has turned its attention to school security. For example, several states have passed or are considering passing legislation that will provide new funding to schools for security equipment and law enforcement officers. Strict security measures in schools are certainly not new. In response to prior acts of school violence, many public schools for years have relied on metal detectors, random sweeps, locked gates, surveillance cameras, and law enforcement officers to promote school safety. Before policymakers and school officials invest more money in strict security measures, this Article provides additional factors that should be considered. First, drawing on recent, restricted data from the U.S. Department of Education, this Article presents an original empirical analysis revealing that low-income students and minority students are much more likely to experience intense security conditions in their schools than other students, even when taking into account neighborhood crime, school crime, and school disorder. These findings raise concerns that such inequalities may continue or worsen as policymakers provide additional funding for security measures. Second, this Article argues that strict security measures do not support long-term solutions needed to effectively prevent school violence. Indeed, strict security measures exacerbate the underlying problems by creating barriers of adversity and mistrust between students and educators. In addition, this Article offers recommendations to address the disproportionate use of security measures on low-income and minority students and to curb violence more effectively. It urges school officials and policymakers to support programs that build trust and collective responsibility instead of providing grants for strict security measures. Further, it recommends that the Department of Education’s Office of Civil Rights play a more active role in addressing the disproportionate use of strict security measures on minority students.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"63 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2013-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2214202","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67997231","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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