Sep 6, 2021 Christopher SloboginCriminal Law
Most scholarship about the impact of technology on policing has been of the sky-is-falling variety. The typical author recites a litany of technological advances, points out how those advances have made policing much more intrusive and pervasive, and then calls for a warrant requirement, some version of “privacy by design,” or perhaps even a prohibition on whatever surveillance technique is at issue. Maintenance of privacy is the main, if the not the dominant, goal.
In Smart Surveillance, Ric Simmons takes a completely different view. Adopting a cost-benefit analysis, he embraces technology that can make policing more efficient. The common scholarly refrain is that maximum Fourth Amendment protection must be imposed whenever technology gives the police a leg up—whenever, as the Supreme Court’s opinion in Carpenter v. United States put it when explaining why a warrant is required to obtain cell site tracking information, new technology makes enforcement efforts “remarkably easy, cheap, and efficient compared to traditional investigative tools.” To Professor Simmons, this stance makes no sense. Such thinking, he says, “turns the cost-benefit analysis on its head by seeking to deter some of the most productive searches available to law enforcement.” (P. 121.) Continue reading "The Costs of Privacy"
Sep 3, 2021 Maureen CarrollCourts Law
Kathryn A. Sabbeth and Jessica K. Steinberg,
The Gender of Gideon, 69
UCLA L. Rev. (forthcoming, 2022), available at
SSRN.
The civil and criminal justice systems are built on an adversarial model, but only in the criminal sphere does the defendant possess a constitutional right to representation at public expense. As a result, while representation is the default in criminal cases, more than three quarters of civil cases involve an unrepresented party.
That disconnect flows from the Supreme Court’s decisions in Gideon v. Wainwright and Lassiter v. Department of Social Services. Gideon held that the Constitution guarantees a right to counsel for a defendant facing imprisonment for a criminal offense, regardless of the nature of the crime or the length of the sentence. Lassiter held that the Constitution does not provide the same guarantee for a parent facing the termination of her legal relationship with her child.
What does any of that have to do with gender? Quite a bit, Kathryn Sabbeth and Jessica Steinberg explain in The Gender of Gideon. Continue reading "A Gendered Right to Counsel?"
Sep 2, 2021 Elizabeth PollmanCorporate Law
Corporate law readers: Do not let this excellent new work by Erika George escape your attention. It is a book focused on human rights. But make no mistake it is about corporations and it richly deserves a spot on your reading list.
The motivating problem in this area is relatively well understood: global human rights slip through the cracks of different regulatory regimes. As Professor George explains: “[C]orporate law fails to adequately address the external effects of the modern corporation and its relationship to society.” Further, “public international law fails to adequately govern the conduct of private nonstate actors.” Multinational corporations influence the ability of many millions of people to enjoy human rights, but these corporations are not currently understood to have the requisite international legal personality to become a party to an existing, binding international human rights treaty. Global competitive pressures discourage home and host states from adopting a level playing field with high standards. Efforts at creating a new, legally-binding international treaty to regulate business have been unsuccessful. The U.S. Supreme Court has narrowed access to courts under the Alien Tort Statute and litigation has proven an unreliable source for a remedy to human rights abuses. Continue reading "The Path Toward Corporate Accountability on Human Rights"
Sep 1, 2021 Robert HillmanContracts
Eric Goldman,
Content Moderation Remedies, __
Mich. Telecomm. & Tech. L. Rev. __ (forthcoming, 2021), available at
SSRN.
What are the appropriate remedies when Internet services, such as Twitter, Facebook, and YouTube, publish anti-social user content? Although regulators and analysts have pondered issues such as what constitutes offending content and who should decide the question, the issue of appropriate remedies needs development. This important question is the subject of an excellent article, Content Moderation Remedies, by Eric Goldman. Notwithstanding that the dominant strategy has been removal of the offending content, Goldman urges a more nuanced approach. He compiles useful and comprehensive examples of alternative remedies short of removal that Internet services already have employed and develops a helpful framework for determining when such remedies may be superior.
Content Moderation Remedies focuses on Internet services’ decisions on remedies, not on legal regulation. The article points out that although content may be illegal, Internet services most often are free from liability under Federal law. Services therefore enjoy some discretion in formulating appropriate remedies for offending content. Even if content is legal, services have discretion under their own house rules on how to deal with offensive material. Continue reading "Remedying Offensive Internet Conduct"
