Author: Stanford Law Review

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Stanford Law Review Online: How the War on Drugs Distorts Privacy Law

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Jane Yakowitz Bambauer entitled How the War on Drugs Distorts Privacy Law. Professor Yakowitz analyzes the opportunity the Supreme Court has to rewrite certain privacy standards in Florida v. Jardines:

The U.S. Supreme Court will soon determine whether a trained narcotics dog’s sniff at the front door of a home constitutes a Fourth Amendment search. The case, Florida v. Jardines, has privacy scholars abuzz because it presents two possible shifts in Fourth Amendment jurisprudence. First, the Court might expand the physical spaces rationale from Justice Scalia’s majority opinion in United States v. Jones. A favorable outcome for Mr. Jardines could reinforce that the home is a formidable privacy fortress, protecting all information from government detection unless that information is visible to the human eye.

Alternatively, and more sensibly, the Court may choose to revisit its previous dog sniff cases, United States v. Place and Illinois v. Caballes. This precedent has shielded dog sniffs from constitutional scrutiny by finding that sniffs of luggage and a car, respectively, did not constitute searches. Their logic is straightforward: since a sniff “discloses only the presence or absence of narcotics, a contraband item,” a search incident to a dog’s alert cannot offend reasonable expectations of privacy. Of course, the logical flaw is equally obvious: police dogs often alert when drugs are not present, resulting in unnecessary suspicionless searches.

She concludes:

Jardines offers the Court an opportunity to carefully assess a mode of policing that subjects all constituents to the burdens of investigation and punishment, not just the “suspicious.” Today, drug-sniffing dogs are unique law enforcement tools that can be used without either individualized suspicion or a “special needs” checkpoint. Given their haphazard deployment and erratic performance, police dogs deserve the skepticism many scholars and courts have expressed. But the wrong reasoning in Jardines could fix indefinitely an assumption that police technologies and civil liberties are always at odds. This would be unfortunate. New technologies have the potential to be what dogs never were—accurate and fair. Explosive detecting systems may eventually meet the standards for this test, and DNA-matching and pattern-based data mining offer more than mere hypothetical promise. Responsible use of these emerging techniques requires more transparency and even application than police departments are accustomed to, but decrease in law enforcement discretion is its own achievement. With luck, the Court will find a search in Jardines while avoiding a rule that reflexively hampers the use of new technologies.

Read the full article, How the War on Drugs Distorts Privacy Law by Jane Yakowitz Bambauer, at the Stanford Law Review Online.

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Stanford Law Review Online: In Memoriam Best Mode

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Lee Petherbridge and Jason Rantanen entitled In Memoriam Best Mode. Professors Petherbridge and Rantanen discuss an overlooked element of the Leahy-Smith America Invents Act—the de facto elimination of the requirement that inventors include a description of the “best mode” of practicing their inventions in patent applications:

On September 16, 2011, President Obama signed into law the Leahy-Smith America Invents Act. It embodies the most substantial legislative overhaul of patent law and practice in more than half a century. Commentators have begun the sizable task of unearthing and calling attention to the many effects the Act may have on the American and international innovation communities. Debates have sprung up over the consequences to inventors small and large, and commentators have obsessed over the Act’s so-called “first-to-file” and “post-grant review” provisions. Lost in the frenzy to understand the consequences of the new Act has been the demise of patent law’s “best mode” requirement.

The purpose of this short essay is to draw attention to a benefit the best mode requirement provides—or perhaps “provided” would be a better word—to the patent system that has not been the subject of previous discussion. The benefit we describe directly challenges the conventional attitude that best mode is divorced from the realities of the patent system and the commercial marketplace. Our analysis suggests that patent reformers may have been much too quick to dismiss best mode as a largely irrelevant, and mostly problematic, doctrine.

They conclude:

Even while best mode can produce patent disclosures that have broader prior art effect, it simultaneously can cooperate with the doctrines of claim construction and written description to produce patents with claims that may be construed as having a narrower scope. Detailed descriptions of especially effective embodiments of an invention can have the effect of introducing elements that courts often find, either through the application of claim construction or written description doctrines, to be essential elements of an invention. Competitors that do not employ such essential elements are not infringers. Thus, best mode can further help establish and maintain the public domain by limiting the amount of information restricted by patents, thereby increasing the distance between bubbles of patent-restricted information.

Read the full article, In Memoriam Best Mode by Lee Petherbridge and Jason Rantanen, at the Stanford Law Review Online.

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Stanford Law Review, 64.3 (2012)

Stanford Law Review

Volume 64 • Issue 3 • March 2012

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Stanford Law Review Online: The Dead Past

Stanford Law Review

The Stanford Law Review Online has just published Chief Judge Alex Kozinski’s Keynote from our 2012 Symposium, The Dead Past. Chief Judge Kozinski discusses the privacy implications of our increasingly digitized world and our role as a society in shaping the law:

I must start out with a confession: When it comes to technology, I’m what you might call a troglodyte. I don’t own a Kindle or an iPad or an iPhone or a Blackberry. I don’t have an avatar or even voicemail. I don’t text.

I don’t reject technology altogether: I do have a typewriter—an electric one, with a ball. But I do think that technology can be a dangerous thing because it changes the way we do things and the way we think about things; and sometimes it changes our own perception of who we are and what we’re about. And by the time we realize it, we find we’re living in a different world with different assumptions about such fundamental things as property and privacy and dignity. And by then, it’s too late to turn back the clock.

He concludes:

Judges, legislators and law enforcement officials live in the real world. The opinions they write, the legislation they pass, the intrusions they dare engage in—all of these reflect an explicit or implicit judgment about the degree of privacy we can reasonably expect by living in our society. In a world where employers monitor the computer communications of their employees, law enforcement officers find it easy to demand that internet service providers give up information on the web-browsing habits of their subscribers. In a world where people post up-to-the-minute location information through Facebook Places or Foursquare, the police may feel justified in attaching a GPS to your car. In a world where people tweet about their sexual experiences and eager thousands read about them the morning after, it may well be reasonable for law enforcement, in pursuit of terrorists and criminals, to spy with high-powered binoculars through people’s bedroom windows or put concealed cameras in public restrooms. In a world where you can listen to people shouting lurid descriptions of their gall-bladder operations into their cell phones, it may well be reasonable to ask telephone companies or even doctors for access to their customer records. If we the people don’t consider our own privacy terribly valuable, we cannot count on government—with its many legitimate worries about law-breaking and security—to guard it for us.

Which is to say that the concerns that have been raised about the erosion of our right to privacy are, indeed, legitimate, but misdirected. The danger here is not Big Brother; the government, and especially Congress, have been commendably restrained, all things considered. The danger comes from a different source altogether. In the immortal words of Pogo: “We have met the enemy and he is us.”

Read the full article, The Dead Past by Alex Kozinski, at the Stanford Law Review Online.

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Stanford Law Review Online: Animus Thick and Thin

Stanford Law Review

The Stanford Law Review Online recently published an Essay by Nan D. Hunter entitled Animus Thick and Thin: The Broader Impact of the Ninth Circuit’s Decision in Perry v. Brown. Professor Hunter argues that the Perry decision will have a more far-reaching impact than most commentators have suggested, both in defining the role of animus in equal protection analysis and in establishing the courts’ role in checking popular initiatives that deny rights to minorities:

The only problem with this analysis for marriage equality supporters is that, despite the principle that courts should resolve constitutional disputes on the narrowest possible grounds, the “taking away” portion of the rationale strikes some as too outcome driven and transparently invented for the goal of providing the Supreme Court with a plausible rationale for denying certiorari. From this view, the opinion’s political strength will also be its greatest doctrinal weakness.

I disagree on two counts. First, I read the opinion as being far more nuanced than it has been given credit for, and believe that its elaboration of the role of animus in judicial review is an important contribution to equal protection doctrine. Second, critics are missing a deeper point: the greatest political strength of the Perry opinion lies not in the short-term question of whether the Supreme Court will accept review, but in its contribution to the more enduring issue of how courts can balance their role of serving as an antimajoritarian check on populist retaliation against minorities while also preserving the values of popular constitutionalism.

She concludes:

[A]lthough initially the panel opinion in Perry would affect only Proposition 8, its larger contribution may be the creative way that it addresses the persistent, intractable conundrum of America’s countermajoritarian difficulty. The opinion does this in part by taking animus seriously as one of the criteria for heightened rational basis review and in part by creating a modest curb on popularly enacted state constitutional amendments. If the Ninth Circuit grants rehearing en banc, the opinion will be vacated, but one hopes that its contribution to the evolution of equal protection law will endure.

Read the full article, Animus Thick and Thin: The Broader Impact of the Ninth Circuit’s Decision in Perry v. Brown by Nan D. Hunter, at Stanford Law Review Online.

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Stanford Law Review Online: In Search of Cyber Peace

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Scott J. Shackelford entitled In Search of Cyber Peace: A Response to the Cybersecurity Act of 2012. In the wake of recent events with the group Anonymous and other “hacktivists,” Shackelford discusses the pressing need for improved cybersecurity and explains why the proposed Cybersecurity Act is a step in the right direction–but doesn’t go far enough:

The Cybersecurity Act of 2012, which was recently introduced in the Senate Homeland Security and Governance Affairs Committee, is the latest legislative attempt to enhance the nation’s cybersecurity. If enacted, the bill would grant new powers to the Department of Homeland Security (DHS) to oversee U.S. government cybersecurity, set “cybersecurity performance requirements” for firms operating what DHS deems to be “critical infrastructure,” and create “exchanges” to promote information sharing. In its current form, the bill is a useful step in the right direction but falls short of what is required. Fundamentally the bill misconstrues the scale and complexity of the evolving cyber threat by defining critical infrastructure too narrowly and relying too much on voluntary incentives and risk mitigation strategies. The Act might improve on the status quo, but it will not foster genuine and lasting cybersecurity. Still, it is preferable to the softer alternative SECURE IT Act proposed by senior Republicans.

He concludes:

If we want to change the status quo, accountability and responsibility must be increased throughout the system. Government regulations are a necessary part of that process. But given political realities and the magnitude of the problem, reform must also include relying on the competitive market whenever possible to proactively foster best practices, providing market-based incentives and cyber risk mitigation techniques to firms operating [critical national infrastructure (CNI)], negotiating new international norms, and educating users to avoid becoming victims of social-engineering attacks like phishing. Cybersecurity cannot truly be enhanced without addressing the myriad governance gaps, which include incomplete regulation of CNI; technical vulnerabilities in the physical, logical, and content layers of the Internet; and legal ambiguities ranging from liability for data breaches to the applicability of international law to cyber attacks. One Act cannot accomplish all that—not even close. But being honest about the magnitude of the problems we face would help to begin a national conversation about what needs to happen next.

In 3001: The Final Odyssey, Arthur C. Clarke envisions a future in which humanity had the foresight to rid the world of its worst weapons of mass destruction by placing them in a vault on the moon. A special place in this vault was reserved for the malignant computer viruses that, in Clarke’s speculative fiction, had caused untold damage to humanity over the centuries. Before new cyber attacks do untold damage to our information society, it is in our interest to educate and regulate our way to a steady state of cybersecurity. Part of this process involves broadening the definition of CNI in the Cybersecurity Act and deepening public-private partnerships through more robust information sharing. Science fiction teaches us that our future world can be either a wonderful or a dystopian place. Whether or not the future includes the security and prosperity of cyber peace is up to us—including, for better or worse, the U.S. Congress.

Read the full article, In Search of Cyber Peace: A Response to the Cybersecurity Act of 2012 by Scott J. Shackelford, at the Stanford Law Review Online.

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Stanford Law Review, 64.2 (2012)

Stanford Law Review

Volume 64 • Issue 2 • February 2012

Articles
National Security Federalism in the Age of Terror
Matthew C. Waxman
64 Stan. L. Rev. 289

Incriminating Thoughts
Nita A. Farahany
64 Stan. L. Rev. 351

Elective Shareholder Liability
Peter Conti-Brown
64 Stan. L. Rev. 409

Note
Harrington’s Wake:
Unanswered Questions on AEDPA’s Application to Summary Dispositions

Matthew Seligman
64 Stan. L. Rev. 469

Comment
Boumediene Applied Badly:
The Extraterritorial Constitution After Al Maqaleh v. Gates

Saurav Ghosh
64 Stan. L. Rev. 507

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Stanford Law Review Online: Physical and Regulatory Takings

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Richard A. Epstein entitled Physical and Regulatory Takings: One Distinction Too Many. In light of Harmon v. Kimmel—a case challenging New York’s rent control statute on petition to the Supreme Court—Epstein provides a succinct economic takedown of uncompensated regulatory takings in four distinct areas: rent control, support easements, zoning, and landmark preservation statutes. In suggesting a unified approach to eminent domain whether the taking is physical or regulatory, he writes:

Unfortunately, modern takings law is in vast disarray because the Supreme Court deals incorrectly with divided interests under the Takings Clause of the Fifth Amendment, which reads: “nor shall private property be taken for public use, without just compensation.” The Supreme Court’s regnant distinction in this area is between physical and regulatory takings. In a physical taking, the government, or some private party authorized by the government, occupies private land in whole or in part. In the case of a per se physical taking, the government must pay the landowner full compensation for the value of the land occupied. Regulatory takings, in contrast, leave landowners in possession, but subject them to restrictions on the ability to use, develop, or dispose of the land. Under current law, regulatory takings are only compensable when the government cannot show some social justification, broadly conceived, for its imposition.

Thus, under current takings law, a physical occupation with trivial economic consequences gets full compensation. In contrast, major regulatory initiatives rarely require a penny in compensation for millions of dollars in economic losses. . . .

The judicial application of takings law to these four different partial interests in land thus destroys the social value created by private transactions that create multiple interests in land. The unprincipled line between occupation and regulation is then quickly manipulated to put rent control, mineral rights, and air rights in the wrong category, where the weak level of protection against regulatory takings encourages excessive government activity. The entire package lets complex legal rules generate the high administrative costs needed to run an indefensible and wasteful system. There are no partial measures that can fix this level of disarray. There is no intellectual warrant for making the categorical distinction between physical and regulatory takings, so that distinction should be abolished. A unified framework should be applied to both cases, where in each case the key question is whether the compensation afforded equals or exceeds the value of the property interest taken. The greatest virtue of this distinction lies not in how it resolves individual cases before the courts. Rather, it lies in blocking the adoption of multiple, mischievous initiatives that should not have been enacted into law in the first place. But in the interim, much work remains to be done. A much-needed first step down that road depends on the Supreme Court granting certiorari in Harmon v. Kimmel.

Read the full article, Physical and Regulatory Takings: One Distinction Too Many by Richard A. Epstein, at the Stanford Law Review Online.

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Stanford Law Review Online: The Ninth Circuit’s Perry Decision and the Constitutional Politics of Marriage Equality

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Yale’s William N. Eskridge Jr. entitled The Ninth Circuit’s Perry Decision and the Constitutional Politics of Marriage Equality. Eskridge provides an accessible summary of the opinion and defends the judgment against detractors who claim it went too far—or didn’t go far enough:

In the blogosphere, Judge Reinhardt’s Perry opinion has come under heavier fire from commentators favoring marriage equality than from those opposed to equality. Some gay-friendly commentators have lamented that the Ninth Circuit did not announce a general right of lesbian and gay couples to marry all over the country and have criticized the court’s narrow reasoning as “dishonest,” analytically “wobbly,” and “disingenuous.” In my view, the court got it right, as a matter of law and as a matter of constitutional politics.

Start with the role of federal courts of appeals in our rule of law system: their role is a limited one, a point these pro-gay commentators have neglected. Such courts (1) are supposed to address the particular factual context presented by the parties, (2) must follow the binding precedent of their own circuit and of the Supreme Court, and (3) ought usually to choose narrow rather than broad grounds for decision. Judge Reinhardt’s Perry opinion is exemplary along all three dimensions. . . .

Should Judge Reinhardt have gone further, to rule that lesbian and gay couples in all states enjoy a “fundamental” right to marry, resulting in strict scrutiny that would be fatal to the exclusion of such couples in the laws of the more than forty states now denying marriage equality? For two decades, I have maintained that the Constitution does assure lesbian and gay couples such a fundamental right. But I am not a court of intermediate appeal. As such a court, the Ninth Circuit panel was right, as a matter of standard legal practice, not to engage this broader argument.

He concludes:

Marriage equality is an idea whose time has come for California, as well as for New York, whose legislature recognized marriage equality last year. But has its time come everywhere in the country? I fear not. The nation’s constitutional culture is much more accepting of lesbian and gay couples today than at the turn of the millennium, but much of the country is still hostile to gay people generally and marriage equality in particular.

Does that mean the Ninth Circuit and the Supreme Court should cower behind a constitutional heckler’s veto? Of course not. But when the hecklers are the bulk of the audience, the constitutional speaker needs to tread more carefully. Courts can help put an issue on the public law agenda, and they can channel discourse into productive directions. They can also help create conditions for falsification of stereotypes and prejudice-driven arguments, such as the canard that gay marriage will undermine “traditional” marriage. But courts cannot create a national consensus on as issue about which “We the People” are not at rest. And nationally, the people are not at rest.

In the United States, as a whole, marriage equality is an idea whose time is coming. And Judge Reinhardt’s decision in Perry v. Brown advances the ball just a little, and not too much.

Read the full article, The Ninth Circuit’s Perry Decision and the Constitutional Politics of Marriage Equality by William N. Eskridge Jr., at the Stanford Law Review Online.

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Stanford Law Review, 64.1 (2012)

Stanford Law Review

Volume 64 • Issue 1 • January 2012

Articles
The Right Not to Keep or Bear Arms
Joseph Blocher
64 Stan. L. Rev. 1

The Ghost That Slayed the Mandate
Kevin C. Walsh
64 Stan. L. Rev. 55

State Sovereign Standing:
Often Overlooked, but Not Forgotten

Kenneth T. Cuccinelli, II, E. Duncan Getchell, Jr.
& Wesley G. Russell, Jr.
64 Stan. L. Rev. 89

Establishing Official Islam?
The Law and Strategy of Counter-Radicalization

Samuel J. Rascoff
64 Stan. L. Rev. 125

Lobbying, Rent-Seeking, and the Constitution
Richard L. Hasen
64 Stan. L. Rev. 191

Note
Bringing a Judicial Takings Claim
Josh Patashnik
64 Stan. L. Rev. 255