Search

We conduct a detailed doctrinal and empirical study of the adverse effects of parole on the constitutional rights of both individual parolees and the communities in which they live. We show that parolees’ Fourth, Fifth and Sixth Amendment rights have been eroded by a multitude of punitive conditions endorsed by the courts. Punitive parole conditions actually increase parolees’ vulnerability to criminal elements, and thus likely worsen recidivism. Simultaneously, the parole system broadly undermines the rights of nonparolees, including family members, cotenants, and communities. We show that police target parolee-dense neighborhoods for additional Terry stops, even when income, race, population, and single- family status are accounted for. Furthermore, police take advantage of the permissive parole search jurisprudence, conducting more searches and arrests of both parolees and their nonparolee neighbors. Combined, this analysis shows that parole institutionalizes individuals and margin

Both Justices and scholars have long debated whether the "freedom . . . of the press" was historically understood as securing special constitutional rights for the institutional press (newspapers, magazines, and broadcasters). This issue comes up in many fields: campaign finance law, libel law, the newsgatherer's privilege, access to government facilities for newsgathering purposes, and more. Most recently, last year's Citizens United v. FEC decision split 5-4 on this very question, and not just in relation to corporate speech rights.This article discusses what the "freedom of the press" has likely meant with regard to this question, during (1) the decades surrounding the ratification of the First Amendment, (2) the decades surrounding the ratification of the Fourteenth Amendment, and (3) the modern First Amendment era. The article focuses solely on the history, and leaves the First Amendment theory questions to others. And, with regard to the history, it offers evidence that the "freedom . . . of the press" has long been understood as meaning freedom for all who used the printing press as technology -- and, by extension, mass communication technology more broadly -- and has generally not been limited to those who belonged to the institutional press as an industry.

This article discusses constitutional and feminist critiques of present rape shield laws in the United States, and ends with a comparative perspective throughout the Anglo-American legal space today. Finally, although the rape shield laws can be approached from a variety of discourses, this article engages specifically with a discourse that intersects legal and feminist analyses

A broad coalition, including companies formerly opposed to the enactment of privacy statutes, has now formed behind the idea of a national information privacy law. Among the benefits that proponents attribute to such a law is that it would harmonize the U.S. regulatory approach with that of the European Union (E.U.) and possibly minimize international regulatory conflicts about privacy. This essay argues, however, that it would be a mistake for the United States to enact a comprehensive or omnibus federal privacy law for the private sector that preempts sectoral privacy law. In a sectoral approach, a privacy statute regulates only a specific context of information use. An omnibus federal privacy law would be a dubious proposition because of its impact on experimentation in federal and state sectoral laws, and the consequences of ossification in the statute itself. In contrast to its skepticism about a federal omnibus statute, this essay views federal sectoral laws as a promising regulatory instrument. The critical question is the optimal nature of a dual federal-state system for information privacy law, and this essay analyzes three aspects of this topic. First, there are general circumstances under which federal sectoral consolidation of state law can bring benefits. Second, the choice between federal ceilings and floors is far from the only preemptive decision that regulators face. Finally, there are second-best solutions that become important should Congress choose to engage in broad sectoral preemption.

This Essay responds to Stephen Holmes’ Jorde Lecture, which was delivered at Boalt Hall on November 5, 2007. It builds on his model of “public liberty” by discussing how private liberty, and information privacy in particular, is a precondition for public liberty. For Holmes, private liberty is largely a negative right—a right to be free from governmental interference. In contrast, this Essay considers privacy to be an element of public rights. Participation in a democracy requires individuals to have an underlying capacity for self-determination, which requires some personal privacy.Through the lens of the recent amendment of the Foreign Intelligence Surveillance Act (FISA), this Essay analyzes a number of Holmesian concepts through. Its Part I describes the background of FISA, the National Security Agency’s (NSA) warrantless surveillance program in violation of this statute, and the amendments to this law in the Protect America Act of 2007, a short term statutory “fix” that has expired, and the FISA Amendments Act of 2008, which remains in effect. Its Part II turns to an analysis of the challenges to private and public liberty posed by the NSA’s surveillance. This Part is organized around three topics: (1) past wisdom as codified in law; (2) the impact of secrecy on government behavior; and (3) institutional lessons. As we shall see, a Holmesian search for the wisdom previously collected in law proves quite difficult. FISA regulated some aspects of intelligence gathering and left the intelligence community entirely free to engage in others. Over time, moreover, technological innovations and altered national security concerns transformed the implications of the past policy landscape. As a result, the toughest questions, which concern surveillance of foreign-to-domestic communications, do not receive an easy answer from the past.Regarding the impact of secrecy on government behavior, the analysis is, at least initially, more straightforward. As Holmes discusses, the Bush administration was adept at keeping secrets not only from the public and other branches of government, but from itself. It is also striking how little Congress knew about NSA activities while amending FISA. The larger lessons, however, prove yet more complicated: strong structural and political factors are likely to limit the involvement of Congress and courts in this area. This Essay concludes by confronting these institutional lessons and evaluating elements of a response that would improve the government’s performance by crafting new informational and deliberative structures for it.