Current Issue

Too Much Information: How Not to Think About Privacy and the Fourth Amendment

01 Oct 2014 12:00am David Alan Sklansky 

just in the sense that the explosive growth of digitized informationrequires rethinking traditional rules of search and seizure, but alsoand more importantly in the sense that a preoccupation with dataflows has led to the neglect of important dimensions of privacy. Thereis no doubt that the control of personal information is an importantvalue and one uniquely threatened by the rise of social media, theproliferation of technological surveillance, and the arrival of BigData. But the reduction of privacy to control over information hasmade it more difficult to think sensibly about the distinctive threatsraised by government searches, and it is partly to blame for thegrowing and unwarranted sense that the Fourth Amendment shouldbe decoupled from privacy-because the concept of privacy ismeaningless, because privacy is dead or dying, or because the mainthreats to privacy are largely orthogonal to the chief dangers posed by law enforcement. Search-and-seizure law would be better servedby an understanding of privacy rooted in respect for a zone of refugeand informed by privacy's longstanding associations withenclothement, retreat, and personal sovereignty. This alternativeconception of privacy-privacy as refuge-should also be attentive tothe relational nature of privacy, the connection between privacy andcivility, and the effects of privacy violations on the perpetrators aswell as the victims. 


In re Sanders and the Resurrection of Stanley v. Illinois

16 Nov 2014 01:40pm Josh Gupta-Kagan 

In 1972, the Supreme Court in Stanley v. Illinois declared that parents are entitled to a hearing on their fitness before the state places their children in foster care, but for decades family courts would not apply this precedent to non-offending parents in child protection cases. Without even citing Stanley, courts held that finding one parent unfit justified taking the child into foster care -- even when the other parent was fit and sought custody. A Michigan Supreme Court decision this past summer, In re Sanders, suggests that courts are now, more than forty years after it was decided, beginning to apply Stanley to protect fit parents' and children's right to stay together.    

Subsequent History Omitted

04 Nov 2014 01:21pm Joel Heller 

The Supreme Court's decision in Shelby County v. Holder striking down part of the Voting Rights Act of 1965 has sparked debate over voting, race, history, and, surprisingly, footnotes. This Essay examines Westlaw's characterization of the Court's earlier decision upholding the VRA in South Carolina v. Katzenbach as "abrogated by Shelby County v. Holder," and uses that characterization as a lens to consider Westlaw's influence on the development of the law.  Because Westlaw's "abrogated" label is both unwarranted and consequential, that proposed subsequent-history clause should be omitted.     

Progressive Property Moving Forward

04 Nov 2014 01:20pm Timothy M. Mulvaney 

In response to Ezra Rosser's article, The Ambition and Transformative Potential of Progressive Property, 101 Calif. L. Rev. 107 (2013), Timothy Mulvaney expresses more confidence than does Rosser in property's potential to serve a role in furthering a progressive society. If property is to serve in this role, however, Mulvaney suggests it is important to redesign and reinterpret property in accordance with three themes-transparency about property rules' value-dependence,humility about the reach of human knowledge and the mutability of our normative positions, and a concern for the socioeconomic identities of those affected by resource disputes-that underlie a broader set of writings than Rosser considers within the contours of "progressive property scholarship" and on which he offers some very preliminary impressions.    

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