Author Archive for danielle-citron
Sherrilyn Ifill on Race v. Class: The False Dichotomy
posted by Danielle Citron
My amazing colleague, guest blogger, and now President and Director-Counsel of the NAACP Legal Defense and Education Fund Inc. Sherrilyn A. Ifillhas a superb Op-Ed in the New York Times about the impending decision in Fisher v. Texas:
The decision is in. All consideration of race in college admissions is over.
No, the Supreme Court has not yet announced its decision in the landmark case of Fisher v. University of Texas; that ruling is expected any day now. But an alarming number of scholars, pundits and columnists — many of them liberal — have declared that economic class, not race, should be the appropriate focus of university affirmative-action efforts.
How can we explain this decision to throw in the towel on race-based affirmative action? Are we witnessing a surrender in advance of sure defeat? Or just an early weariness with a debate that, a decade ago, Justice Sandra Day O’Connor predicted would last another 25 years?
Perhaps it is the presence of a black president that has encouraged so many to believe that race is simply no longer a significant factor in American life. It is true that we have come a long way since the days of Jim Crow segregation. But the plain fact is that race still matters. Read the rest of this post »
June 14, 2013 at 11:34 am
Posted in: Civil Rights, Constitutional Law, Race
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Interview with Marvin Kalb: The Road to War, Presidential Commitments Honored and Betrayed
posted by Danielle Citron
I could not have timed my chat with Marvin Kalb
better. On Sunday, before talking about cyber hate for the U.S. Holocaust Museum’s 20th Anniversary Tour in Chicago, Kalb and I discussed his most recent book, The Road to War: Presidential Commitments Honored and Betrayed (Brookings Institution Press 2013). The timing was auspicious not just because the book had come out days before but because at least 40% of the nation was reeling from learning about the most recent abuse of Executive power: the NSA’s PRISM program and leaked FISA court Verizon order.
Before I recount some of the highlights of our conversation, I wanted to begin with a wonderful and incredibly apt description of Kalb written by a UPI reporter:
[Kalb] is the senior statesman of U.S. media. Tall, handsome, brilliant, unfailingly courteous, Marvin Kalb looks and acts more like a senior statesman than the chief diplomatic correspondent he was for CBS News and NBC over 30 years when these networks cared about world news. Now these media organizations still bill themselves as world news networks but, most nights, forget about the rest of the world.
Following his prize-studded reportorial career, Kalb became the first director of journalism’s school of higher learning at Harvard — the Joan Shorenstein Center on the Press, Politics and Public Policy. Now, still the profession’s senior statesman, he runs the center’s Washington office and hosts “The Kalb Report.” The author of two best-selling novels and a book titled, “One Scandalous Story: Clinton, Lewinsky and 13 days That Transformed American Journalism,” Kalb’s 13th book — his best — excoriates Congress for relinquishing its constitutional obligation to declare war.
The U.S. News and World Report’s Jamie Stiehm describes Kalb’s new book as “an elegant
synthesis of how easy, too easy, it has become for an American president, any American president, to go to war” with Congress “ceding its rightful role in declaring war and tends to go along with the man in the White House.” Kalb’s book argues that so much power should not be concentrated in the President.
Here are some highlights from our conversation:
DC: Why has it been so easy for the Executive Branch to ignore the core constitutional guarantee that Congress declare war?
MK: We have a system of law undergirding Presidential authority to go to war — Congressional declaration of War and the power of the purse — yet it has been consistently ceded to the President. When I covered Vietnam in 1968, we had 500,000 troops on the ground. Who gave the President the authority to do so? I am a great believer of law, but if it is ignored with impunity, to whom do we turn?
DC: How did we get to that state of affairs–the President doing what he wants without check? Are things much different in light of recent revelations of our unsanctioned domestic intelligence apparatus?
MK: What we are witnessing this week stands as a confirmation of what we have ben seeing–unchecked Presidential power in the name of war time. In the Korea and Vietnam wars, one President after another made unchecked decisions and no one blew the whistle, most significantly Congress. Congress was successfully pressured to cede its power to the Executive Branch. For instance, only two Senators voted “no” for the Gulf of Tonkin resolution. When one of those senators, Senator Morse, saw President Johnson, the President put his arm around the Senator and said “Wayne, you are a good American. We do not want to hurt the troops.” Johnson wielded his power through persuasion and it worked–Congressional resistance was vanishingly small.
DC: What do you think of this week’s revelations about PRISM and the Verizon order?
MK: In important ways, I thought that we beat Big Brother when we prevailed in the Cold War. With the indiscriminate collection and analysis of all Verizon users’ telephony metadata (including who we called, where we were, and the inevitable revelation of sensitive information given the answer to the “who” question), we have become what we most fear–executive branch conducting surveillance over ordinary citizens in increasingly intrusive ways. Read the rest of this post »
June 12, 2013 at 10:09 am
Posted in: Administrative Law, Constitutional Law, Government Secrecy, History of Law, Interviews, Political Economy, Politics
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Probabilistic Crime Solving
posted by Danielle Citron
In our Big Data age, policing may shift its focus away from catching criminals to stopping crime from happening. That might sound like Hollywood “Minority Report” fantasy but not to researchers hoping to leverage data to identify future crime areas. Consider as an illustration a research project sponsored by Rutgers Center on Public Security. According to Government Technology, Rutgers professors have obtained a two-year $500,000 grant to conduct “risk terrain modeling” research in U.S. cities. Working with police forces in Arlington, Texas, Chicago, Colorado Springs, Colorado, Glendale, Arizona, Kansas City, Missouri, and Newark, New Jersey, the team will analyze an area’s history of crime with data on “local behavioral and physical characteristics” to identify locations with the greatest crime risk. As Professor Joel Caplan explains, data analysis “paints a picture of those underlying features of the environment that are attractive for certain types of illegal behavior, and in doing so, we’re able to assign probabilities of crime occurring.” Criminals tend to shift criminal activity to different locations to evade detection. The hope is to detect the criminals’ next move before they get there. Mapping techniques will systematize what is now just a matter of instinct or guess work, explain researchers.
Will reactive policing give way to predictive policing? Will police departments someday staff officers outside probabilistic targets to prevent criminals from ever acting on criminal designs? The data inputs and algorithms are crucial to the success of any Big Data endeavor. Before diving head long, we ought to ask about the provenance of the “local behavioral and physical characteristics” data. Will researchers be given access to live feeds from CCTV cameras and data broker dossiers? Will they be mining public and private sector databases along the lines of fusion centers? Because these projects involve state actors who are neither bound by the federal Privacy Act of 1974 nor federal restrictions on the collection of personal data, do state privacy laws limit the sorts of data that can be collected, analyzed, and shared? Does the Fourth Amendment have a role in such predictive policing? Is this project just the beginning of a system in which citizens receive criminal score risk assessments? The time is certainly ripe to talk more seriously about “technological due process” and the “right to quantitative privacy” for the surveillance age.
June 4, 2013 at 3:30 pm
Posted in: Constitutional Law, Criminal Procedure, Cyber Civil Rights, Cyberlaw, Privacy, Technology
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C’est Vrai: Online Voting, a Bad Idea
posted by Danielle Citron
Paris held a four-day mayoral primary in which individuals could cast their votes online. But things not proceed as officials planned. Over the weekend, Metronews journalists exposed the first-ever online primary as insecure and inaccurate. Here is how the process worked (or failed to work). To register to vote, Parisians made a credit-card payment and gave the name and address of someone on the city’s electoral roll. According to the Independent, a journalist reportedly voted five times with the same credit card and even using the name Nicolas Sarkozy. Lest one breathe a sigh of relief that the U.S. would never do anything as foolish as Internet voting, at least 16 states or counties have applied for grants from the Department of Defense to experiment with online ballot-marking portals that are one step shy of counting votes. Of course, voting online system vendors think Internet voting is a fabulous idea. But computer scientists in the U.S. fairly uniformly agree that online voting is a bad idea. Let’s not follow France’s lead.
June 3, 2013 at 3:23 pm
Posted in: Administrative Announcements, Election Law, Technology
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Recommended Reading: Garrett and Kovarsky’s New Casebook on Federal Habeas Corpus
posted by Danielle Citron
A new casebook co-authored by University of Virginia law professor Brandon Garrett and my brilliant colleague Lee Kovarsky is the first to comprehensively cover habeas corpus, particularly exploring the topics of post-conviction review, executive and national security detention litigation, and the detention of immigrants. The book, just published by Foundation Press, is titled “Federal Habeas Corpus: Executive Detention and Post-conviction Litigation.” 
The privilege of habeas corpus — which ensures that a prisoner can challenge an unlawful detention, such as for a lack of sufficient cause or evidence — has grown increasingly complex and important. Just this week, the Supreme Court decided important habeas cases recognizing an innocence-exception to habeas time-limits, and making it easier for state inmates to use habeas corpus to challenge the ineffectiveness of their trial lawyer. See Garrett and Kovarsky on ‘Two Gateways to Habeas’)
Here is an excerpt of an interview of Professor Garrett and Professor Kovarsky posted on the UVA website:
“In writing this casebook, our goal was to create the subject,” Garrett said. “There is something deep connecting different parts of habeas corpus that are often taught in far-flung parts of courses or are not taught at all. Habeas corpus is now an extremely valuable and exciting course to teach, and we thought the subject demanded a rich set of teaching materials.”
Garrett, who has taught habeas corpus at UVA Law for eight years, co-wrote the book with Kovarsky, a 2004 Virginia Law graduate and a leading habeas and capital litigator who joined the University of Maryland’s Francis King Carey School of Law as an assistant professor in 2011.
“A few years ago, I started talking to Lee about habeas corpus,” Garrett said. “Lee writes insightful scholarship about habeas corpus, and is also a longtime habeas practitioner; he still works on high-profile death penalty cases in Texas. I sent him my course materials because he was starting teaching as a law professor at Maryland. And he immediately said that this should be a casebook.”
Kovarsky said he and Garrett decided to work together on the project to identify — and establish — a habeas canon that was “divorced from any immediate political, ideological or institutional objective.”
”The decisional law and academic literature is polluted with too much erroneously accepted wisdom about the [writ of habeas corpus'] essence and, by implication, its limits,” he said. “That accepted wisdom, in turn, fuels legally
substantial narratives that are, in many ways, best explored, challenged and modified in a classroom.”
Traditionally, Garrett said, law schools have taught habeas corpus as a short segment in federal courts or criminal adjudication courses rather than as a full class. Yet these brief segments, he said, are no longer sufficient.
The law of habeas corpus became significantly more complicated after Congress passed the Antiterrorism and Effective Death Penalty Act in 1996, which was passed in the wake of the Oklahoma City bombing and the first World Trade Center bombing. Read the rest of this post »
May 31, 2013 at 2:26 pm
Posted in: Book Reviews, Bright Ideas, Constitutional Law, Courts, Criminal Procedure
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Introducing Guest Blogger Babak Siavoshy
posted by Danielle Citron
I am delighted to welcome aboard guest blogger Babak Siavoshy
who is a fellow and supervising attorney at the Samuelson Law, Technology & Public Policy Clinic at the UC Berkeley School of Law. His work centers on the constitutional and legal implications of emerging technologies. He has worked on technology and privacy issues for California Attorney General Kamala Harris, and as an associate at O’Melveny & Myers LLP in Washington D.C., where he co-wrote the respondent’s brief in the Supreme Court’s landmark GPS tracking decision, United States v. Jones. Siavoshy has been a visiting scholar at Georgetown Law’s Center on National Security and the Law, where his research focused on biometric identification technologies. He also served as a law clerk to the Honorable John T. Noonan, Jr., on the United States Court of Appeals for the Ninth Circuit in San Francisco. Siavoshy regularly blogs here.
May 31, 2013 at 2:01 pm
Posted in: Administrative Announcements
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Reviewing Dale Carpenter’s The Story of Lawrence v. Texas
posted by Danielle Citron
Professor Marc Spindelman published an insightful review of Dale Carpenter’s Flagrant Conduct: The Story of Lawrence v. Texas in the Michigan Law Review. Lawrence v. Texas was indeed a great civil rights victory for lesbian and gay rights. In his review, Professor Spindelman explores the broader implications of Lawrence for equality along the often-intersecting lines of gender, class, and race.
May 31, 2013 at 12:57 pm
Posted in: Civil Rights, Constitutional Law
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Introducing Guest Blogger Andrew Blair-Stanek
posted by Danielle Citron
I’m delighted to introduce my colleague Professor Andrew Blair-Stanek who will be guest blogging with us. Professor Blair-Stanek’s research and teaching interest is tax law. He draws from non-tax scholarship and case law to improve and to better understand tax law. 
Prior to joining the University of Maryland Carey Law faculty, Professor Blair-Stanek practiced tax law at McDermott, Will & Emery, LLP in Washington, DC. His practice included international tax planning, cross-border mergers, bankruptcy taxation, and real estate investment trust formation. Prior to practice, he clerked in Baltimore for the Hon. Paul V. Niemeyer, U.S. Court of Appeals for the Fourth Circuit.
Professor Blair-Stanek received his undergraduate degree in mathematics, summa cum laude, from Princeton University, and his JD from Yale Law School, where he was on the Yale Law Journal. Before attending law school, he worked as a software design engineer for Microsoft Corporation and is the inventor of U.S. Patents 7,617,204 and 7,580,951.
Publications:
Tax in the Cathedral: Property Rules, Liability Rules, and Tax, 99 Va. L. Rev. __ (forthcoming 2013).
Twombly Is the Logical Extension of the Mathews v. Eldridge Test to Discovery, 62 Fla. L. Rev. 1 (2010).
Increased Market Power as a New Secondary Consideration in Patent Law, 58 Am. U. L. Rev. 707 (2009).
Profits as Commercial Success, 117 Yale L.J. 642 (2008) (Note).
May 31, 2013 at 12:45 pm
Posted in: Administrative Announcements
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Introducing Guest Blogger Woodrow Hartzog
posted by Danielle Citron
I am thrilled to introduce Professor Woodrow Hartzog who will be guest blogging with us. Professor Hartzog 
is an Assistant Professor at Samford University’s Cumberland School of Law and an Affiliate Scholar at the Center for Internet and Society at Stanford Law School. His research focuses on privacy, human-computer interaction, contracts, and robotics. He has been quoted and referenced in various news outlets, including NPR, the New York Times, and The Atlantic. He previously worked as a trademark attorney at the United States Patent and Trademark Office and in private practice. He also served as a clerk for the Electronic Privacy Information Center.
His recent publications include:
Reviving Implied Confidentiality, 89 Indiana Law Journal (forthcoming 2014).
Obscurity by Design, 88 Washington Law Review (forthcoming 2013) (with Fred Stutzman).
Social Data, 74 Ohio State Law Journal (forthcoming 2013).
The Fight to Frame Privacy, 111 Michigan Law Review 1021 (2013) (book review).
The Case for Online Obscurity, 101 California Law Review 1 (2013) (with Fred Stutzman).
Chain-Link Confidentiality, 46 Georgia Law Review 657 (2012)
Website Design as Contract, 60 American University Law Review 1635 (2011).
May 31, 2013 at 12:40 pm
Posted in: Administrative Announcements
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Jeffrey Kahn’s “Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists”
posted by Danielle Citron
I’ve been meaning to recommend guest blogger Jeffrey Kahn’s recently published book “Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists” (University of Michigan Press 2013).
Today, when a single person can turn an airplane into a guided missile, no one objects to rigorous security before flying. But can the state simply declare some people too dangerous to travel, ever and anywhere? Does the Constitution protect a fundamental right to travel? Should the mode of travel (car, plane, or boat) or itinerary (domestic or international) make a constitutional difference? This book explores the legal and policy questions raised by government travel restrictions, from passports and rubber stamps to computerized terrorist watchlists.
In tracing the history and scope of U.S. travel regulations, Jeffrey Kahn begins with the fascinating story of Mrs. Ruth Shipley, a federal employee who almost single-handedly controlled access to passports during the Cold War. Kahn questions how far national security policies should go and whether the government should be able to declare some individuals simply too dangerous to travel. An expert on constitutional law, Kahn argues that U.S. citizens’ freedom to leave the country and return is a fundamental right, protected by the Constitution.
“With authoritative detail, this elegantly written and constructed book takes on an overlooked travesty of contemporary counterterrorism—easy use of the terrorist watchlist to stop Americans from coming home. To reconstruct our right to travel, Kahn brilliantly polishes an undervalued gem of the Constitution—the Citizenship Clause. A necessary read.”
—Susan Ginsburg, Senior Counsel and Team Leader, 9/11 Commission
“Despite an avalanche of writing about post-9/11 security policies, far too little attention has been paid to the increasingly important world of watchlists and their impact on the ability to travel. Jeff Kahn has filled this gap with a definitive account that deftly blends historical, legal, and policy analysis. And he has done it with real narrative flair. Mrs. Shipley’s Ghost will be required—and thoroughly enjoyable—reading for anyone interested in the intersection of data, security, and liberties.”
—Robert M. Chesney, University of Texas School of Law
May 30, 2013 at 7:56 pm
Posted in: Constitutional Law, Politics, Privacy
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Pedraza-Farina on Patent Law and the Sociology of Innovation
posted by Danielle Citron
Laura Pedraza-Farina has a superb piece up on SSRN entitled “Patent Law and the Sociology of Innovation” (Wisconsin Law Review). Here is the abstract:
Francis Bacon stressed centuries ago that innovation is inevitably influenced by mental and social constraints. It is only by exposing and understanding these constraints, Bacon argued, that society can fully benefit from scientific innovation. But while historians and sociologists of science and technology have long appreciated how institutional norms shape the course, pace, and content of innovation, legal scholarship on patent law has all but ignored this insight. In this Article, I seek to complement traditional law and economic analyses of patent law by developing a sociological and historical approach that focuses in concrete detail on the ways in which scientific knowledge, and thus innovation, is made, maintained, and modified. Rather than focus on individuals and their cognitive abilities as the drivers of innovation, a sociological view of innovation emphasizes the central role of communities of practice in which individual inventors are embedded. Interactions across and within communities of practice influence the speed of innovation. Innovative delay often arises when vested community interests in particular research tools, approaches, and questions block the migration of tools and ideas across communities. Within each community, reliance on interpersonal relationships of trust and authority to determine which research programs and methodologies are legitimate and interesting can also lead to innovative delay. Similarly, periods of fast innovative activity often have sociological explanations. For example, a particular line of research long ignored may become a “hot” topic of research when backed by a high-status intellectual actor. This socio-historical approach is responsive to recent Supreme Court patent law jurisprudence, exemplified by KSR v. Teleflex, that directs courts to take a flexible approach to patentability by considering “the circumstances surrounding the origin of the invention.” Understanding why some scientific innovations take a long time to develop or be endorsed by the scientific community provides an opportunity to reshape patent law as a policy lever to mitigate such delays. Conversely, understanding why other types of innovation occur rapidly and spark swift follow-on innovation calls attention to circumstances in which broad patent rights may impose particularly high social costs. By teasing out social factors that influence the pace of innovation, I offer a framework for taking such considerations into account in the design and application of patent law. I also propose specific changes to patent law doctrine that flow from this framework.
May 30, 2013 at 7:21 pm
Posted in: Intellectual Property
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Franks on “How to Feel Like a Woman, or Why Punishment Is a Drag”
posted by Danielle Citron
Professor Mary Anne Franks and fantastic guest blogger makes an important contribution with her latest work “How to Feel Like a Woman, or Why Punishment Is A Drag” (forthcoming UCLA Law Review). Professor Franks focuses on the sexual abuse of men in prison to help us better understand sexual and domestic abuse more generally. As Franks writes:
If a man in prison claims he was made “to feel like a woman,” this is commonly understood to mean that was degraded, dehumanized, and sexualized. This association of femininity with punishment has significant implications for the way our society understands not only the sexual abuse of men in prison, but sexual abuse generally. These important implications are usually overlooked, however, because law and society typically regard prison feminization as a problem of gender transposition: that is, as a problem of men being treated like women. This Article argues that feminization is punitive for both men and women: it is as unnatural and as wrong for women to be degraded, dehumanized, and sexualized under coercive circumstances as it is for men to be. This Article suggests that examining the sexual abuse of men in prisons can help disrupt the persistent and uncritical linking of feminization and women. By reading the sexualized abuse of men in prison as a form of forced drag, this Article hopes to expose the artificiality and violence of compelled feminization. The proper approach to assessing forced feminization is to focus on its oppressive structure, not on the gender of its victims. When we do so, we can see what all victims along the spectrum of sexual and domestic abuse have in common, and to form our social and legal responses accordingly. The phenomenon of male sexual abuse in prison thus provides a potentially illuminating opportunity to think about the structure and consequences of sexual abuse in general. This is significant not least because social and legal responses to sexual abuse outside of the prison setting – where sexual abuse is overwhelmingly experienced by women and committed by men – are constrained by pernicious gender stereotypes and a massive failure of empathy. Understanding the phenomenon of male prison sexual abuse is thus essential not only for addressing a specific problem in carceral institutions, but forces law and society to consider sexual abuse in a productively counter-intuitive way.
Also, as my co-blogger Kaimi notes in our Asides, there is a write up of Prof. Franks in Ocean Drive that captures the force of her intelligence and personal strength.
May 15, 2013 at 9:13 am
Posted in: Criminal Law, Feminism and Gender
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Friedman and Lakier on Limiting Commerce Power
posted by Danielle Citron
Professor Barry Friedman and NYU-graduate and Genevieve Lakier have made an important contribution to our understanding of Commerce Clause power in their piece “‘To Regulate,” Not “To Prohibit:’ Limiting the Commerce Clause.” In the piece, just posted on SSRN, the authors debunk the long-standing and critically unexamined assumption that congressional power to regulate commerce entails the power to shut commerce down:
Today it is taken for granted that Congress’s power “to regulate . . . Commerce among the several States” includes the power to shut interstate markets down. That is why, for example, Congress is understood to have the power to ban the possession and use of marijuana, even though twenty states have expressed contrary preferences, either for the medicinal or recreational use of the drug. This Article argues that as a matter of constitutional history and theory both, this familiar assumption about congressional power is wrong. First, the Article demonstrates that the original understanding, which prevailed for over one hundred years, did not grant Congress the power to ban markets. Congress could pass “helper” statutes to facilitate state choices, and it could even ban particular goods (such as diseased cattle) “in service” of the interstate market; but it could not simply prohibit all commerce in products of which it disapproved. Second, the Article demonstrates that although this understanding changed following the 1903 Supreme Court decision in Champion v. Ames, none of the reasons supporting the change justify Congress possessing the power today. Finally, this Article examines theoretical justifications for congressional power grounded in law and economics and constitutional theory to suggest that the power “to regulate” interstate commerce should not be understood to include the power to prohibit it. The argument has implications for national bans on articles and activities such as interstate gambling, drugs, raw milk products and assault weapons.
May 15, 2013 at 8:53 am
Posted in: Constitutional Law
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Albany Law Review Symposium “What Are We Saying? Violence, Vulgarity, Lies . . . And The Importance Of 21st Century Free Speech”
posted by Danielle Citron
The Albany Law Review had a terrific symposium on free speech. Here is their description of the symposium and the links to the excellent pieces.
In recent years, the United States Supreme Court has issued a number of head-turning decisions regarding freedom of speech under the First Amendment. Taken as a whole, some might say that the Roberts Court appears somewhat schizophrenic on free speech and expression issues. This is the Court that stretched the boundaries of free speech, recognizing First Amendment protections for selling violent video games to minors, lying about receiving military honors, protesting at the funerals of soldiers, and–perhaps most controversially of all–contributing to political campaigns through independent expenditures by corporations and unions. Yet this is also the Court that constrained free speech by saying that the First Amendment did not protect a district attorney who criticized a policy set by his supervisor, that the First Amendment did not protect high school students punished for posting remarks on the Internet outside school grounds, and that the First Amendment did not protect a humanitarian aid organization that provided non-violent educational materials to a group deemed by the U.S. government to be a threat. Clearly, a split record with some interesting lines that appear to be drawn. This symposium examines these recent decisions by the Roberts Court, exploring both the impact of these decisions and the direction in which the Supreme Court really seems to be going on matters of free expression. Leading First Amendment scholars and advocates grapple with some of the major modern issues in this area: academic freedom, modern-day limits on “hate speech,” government stifling of political dissent, restrictions on free expression on the Internet and on television, First Amendment problems in criminal conspiracy laws. Additionally, the symposium includes two transcripts of lively discussions on free speech issues: a debate between First Amendment heavyweights Floyd Abrams and Alan B. Morrison on Citizens United v. Federal Election Commission, and a panel discussion about the Roberts Court’s free speech jurisprudence moderated by NY Times Supreme Court correspondent Adam Liptak. Through these articles and transcripts, we provide a look through the eyes of experts at what the Roberts Court really is saying about contemporary freedom of speech, and a series of viewpoints on whether this direction really is favorable for our modern society.”
Ronald K.L. Collins……Foreword: Exceptional Freedom—The Roberts Court, the First Amendment, and the New Absolutism
Robert M. O’Neil ………Hate Speech, Fighting Words, and Beyond–Why American Law is Unique
Rodney A. Smolla……..Categories, Tiers of Review, and the Roiling Sea of Free Speech Doctrine and Principle: A Methodological Critique of United States v. Alvarez
Jeffery C. Barnum………Encouraging Congress to Encourage Speech: Reflections on United States v. Alvarez
Marjorie Heins……….The Supreme Court and Political Speech in the 21st Century: The Implications of Holder v. Humanitarian Law Project
R. George Wright………Are There First Amendment “Vacuums?”: The Case of the Free Speech Challenge to Tobacco Package Labeling Requirement
Robert D. Richards & David J. Weinert………Punting in the First Amendment’s Red Zone: The Supreme Court’s “Indecision” on the FCC’s Indecency Regulations Leaves Broadcasters Still Searching For Answers
Marvin Ammori & Luke Pelican………Media Diversity and Online Advertising
Martin H. Redish & Michael J.T. Downey………Criminal Conspiracy as Free Expression
Owen Fiss……..The Democratic Mission of the University
Welcome & Opening Remarks…….Benjamin P. Pomerance
Debate on Citizens United v. Federal Election Commission…….Floyd Abrams and Alan B. Morrison, moderated by Ronald K.L. Collins
Panel Discussion on Recent U.S. Supreme Court Free Speech Cases and Their Implications……Adam Liptak (moderator), Ronald K.L. Collins, Susan N. Herman, Alan B. Morrison, Robert M. O’Neil, Robert D. Richards
May 2, 2013 at 12:34 pm
Posted in: Administrative Announcements, First Amendment
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Welcoming Back Guest Blogger William McGeveran
posted by Danielle Citron
I am thrilled to welcome back a friend of the blog Professor William McGeveran, the Lampert Fesler Research Fellow and Associate Professor of Law at University of Minnesota School of Law. Professor McGeveran specializes in information law, including intellectual property, data privacy, communications and technology, and free speech. His primary current research focuses on legal and other rules governing digital identity and data privacy, ranging from online impersonation to celebrities’ rights over their images to the privacy features of Facebook and other social networks. Additional areas of research include rights to use trademarks for communicative purposes such as parody or comparative advertising, and the tension between transparency and privacy in regimes areas such as election regulation or open records laws. He teaches Data Privacy, Trademark, Civil Procedure I and II, and Law in Practice. He is an affiliated professor at the School of Journalism and Mass Communications and a frequently uses Twitter (as @BillMcGev).
Professor McGeveran earned a J.D., magna cum laude, from New York University and a B.A., magna cum laude, in political science from Carleton College. Prior to coming to the University of Minnesota, Professor McGeveran was a resident fellow at the Berkman Center for Internet and Society at Harvard Law School. He previously clerked for Judge Sandra Lynch on the United States Court of Appeals for the First Circuit and practiced as an intellectual property litigator at Foley Hoag LLP in Boston. Before law school, Professor McGeveran worked in national politics for seven years, primarily as a policy aide to Democrats in the United States House of Representatives. He grew up in New York City.
May 1, 2013 at 8:45 am
Posted in: Administrative Announcements
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Exponential Hacks
posted by Danielle Citron
As All Things Digital Kara Swisher reports, Living Social experienced a significant hack the other day: over 50 million users’ email, dates of birth, and encrypted passwords were leaked into the hands of Russian hackers (or so it seems). This hack comes on the heels of data breaches at LinkedIn and Zappos. That the passwords were encrypted just means that users better change their passwords and fast because in time the encryption can be broken. A few years ago, I blogged about the 500 million mark of personal data leaked. Hundreds of millions seems like child’s play today.
This raises some important questions about what we mean when we talk about personally identifiable information (PII). Paul Schwartz and my co-blogger Dan Solove have done terrific work helping legislators devise meaningful definitions of PII in a world of reidentification. Paul Ohm is currently working on an important project providing a coherent account of sensitive information in the context of current data protection laws. Is someone’s password and date of birth sensitive information deserving special privacy protection? Beyond the obvious health, credit, and financial information, what other sorts of data do we consider sensitive and why? Answers to these questions are crucial to companies formulating best practices, the FTC as it continues its robust enforcement of privacy promises and pursuing deceptive practices, and legislators considering private sector privacy regulations of data brokers, as in Senator John Rockefeller’s current efforts.
April 28, 2013 at 1:15 pm
Posted in: Privacy, Privacy (Consumer Privacy), Privacy (Medical)
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Introducing the Online Symposium on Corey Brettschneider’s When The State Speaks, What Should It Say?
posted by Danielle Citron
This week, we will be holding an online symposium on Professor Corey Brettschneider’s book “When the State Speaks, What Should It Say?: How Democracies Can Protect Expression and Promote Equality” (Princeton University Press, 2012). Read the rest of this post »
April 7, 2013 at 8:07 pm
Posted in: Symposium (When the State Speaks)
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Up Next Week: Online Symposium on Corey Brettschneider’s “When the State Speaks, What Should It Say?”
posted by Danielle Citron
Next week, we will be hosting an online symposium on Professor Corey Brettschneider’s book “When the State Speaks, What Should It Say?: How Democracies Can Protect Expression and Promote Equality” (Princeton University Press, 2012). Professor Brettschneider is a Professor of Political Science at Brown University and, in the fall, he will be visiting Fordham University School of Law, joining our very own guest blogger Olivier Sylvain. The Harvard Law Review’s recent publications authors describe the book in this way:
Free speech scholars note a growing gap between speech regulations in the United States and in Europe. While European democracies criminalize hate speech as a threat to democratic egalitarianism, the United States has clung to a fiercely neutralist approach, protecting free speech rights regardless of the speaker’s viewpoint. Advocates of neutralism criticize prohibition- ists for trampling individual liberties; prohibitionists decry neutralists for protecting hateful speech inimical to their liberal political ideals. In a timely new book, Professor Corey Brettschneider suggests a third alternative: while continuing to uphold protections for individual hate speech in their regulatory capacities, governments in their expressive capacities should engage in a process of “democratic persuasion” that levies the state’s pedagogical, symbolic, and spending powers to pro- mote values of equality and tolerance (pp. 4–5). Avoiding the paralysis of the liberal democracy too committed to neutrality to resist its own ideological enemies, democratic persuasion aims at a political ideal of “value democracy”: a political order that respects individual freedoms while taking a firm expressive stand on its preferred social values (pp. 24–25). Professor Brettschneider’s book tackles a debate at the fore- front of contemporary free speech scholarship with a clarity that should make it accessible to readers outside the legal academy.
We have a wonderful group of scholars joining us (many whose books we recently celebrated at CoOp):
April 4, 2013 at 4:19 pm
Posted in: Administrative Announcements, Symposium (When the State Speaks)
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Introducing Guest Blogger Meredith Render
posted by Danielle Citron
I’m excited to introduce Meredith Render, who is an Associate Professor of Law at University of Alabama School of Law. Professor Render and I taught together when she was visiting at Maryland–she is an exciting scholar and teacher who
writes about property, civil Rights, and gender and the law. Her scholarship explores a variety of issues related to the nature of property rights and the constitutive role of formal and informal rules. Professor Render’s article The Law of the Body, is forthcoming in the Emory Law Journal and her article Gender Rules was selected for presentation at Yale Law School as part of the Yale /Stanford Junior Faculty Forum. Professor Render also has book chapters forthcoming in books published by the University of Alabama Press and Cambridge University Press. Professor Render joined the Alabama faculty in 2007. Prior to joining the faculty, she was a teaching fellow at Stanford Law School and a Visiting Assistant Professor at the University of Maryland. Professor Render also clerked for the Honorable Fortunato Benavides of the United States Court of Appeals for the Fifth Circuit and for the Honorable George W. Lindberg of the United States District Court for the Northern District of Illinois. Professor Render received her JD from Georgetown University Law Center.
Her recent scholarship includes:
The Law of the Body 62 EMORY L.J. _ (forthcoming).
Sex Discrimination by Religious Institutions: An Uneasy Case for Tolerance, in MATTERS OF FAITH (forthcoming, Cambridge University Press, Austin Sarat ed., 2012).
Power, Paradigms, and Legal Prescriptions: “The Rule of Law” as a Necessary but Not Sufficient Condition for Transitional Justice, in TRANSITIONS (forthcoming, The University of Alabama Press, Austin Sarat ed., 2012).
Gender Rules, 22 YALE J. L. FEMINISM 133 (2010).
April 1, 2013 at 9:40 am
Posted in: Administrative Announcements
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Welcoming Back Guest Blogger Olivier Sylvain
posted by Danielle Citron
I’m delighted to welcome back as a guest blogger Olivier Sylvain. Professor Sylvain is an Associate Professor of Law at Fordham University School of Law. His academic interests include the public lawmaking processes generally and
communications law and policy in particular. He teaches telecommunications law, Internet law, and administrative law. He is also a Research Associate at the Donald McGannon Communication Research Center at Fordham. Before teaching, Professor Sylvain was a litigation associate in the Washington, D.C. office of Jenner & Block, LLC where he worked on a variety of constitutional law and telecommunications related matters. Before Jenner, he was the Marvin Karpatkin Fellow in the National Legal Office of the AmericanCivil Liberties Union.
Professor Sylvain’s recent scholarship includes:
Broadband Localism, 73 Ohio State Law Journal 795 (2012)
Internet Governance and Democratic Legitimacy, Federal Communications Law Journal, Vol. 62, No. 2 (2010)
Domesticating “the Great, Throbbing, Common Pulse of America”: A Study of the Ideological Origins of the Radio Act of 1927 (2010) (dissertation)
Contingency and the “Networked Information Economy”: A Critique of the “Wealth of Networks,” The International Journal of Technology, Knowledge and Society, Volume 4, Issue 3 (2008), pp.203-210.
April 1, 2013 at 9:34 am
Posted in: Administrative Announcements
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