Volume 2015, Number 5
Regulating Mass Surveillance As Privacy Pollution: Learning From Environmental Impact Statements
A. Michael Froomkin | 2015 U. Ill. L. Rev. 1713
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Encroachments on privacy through mass surveillance greatly resemble the pollution crisis in that they can be understood as imposing an externality on the surveilled. This Article argues that this resemblance also suggests a solution: requiring those conducting mass surveillance
in and through public spaces to disclose their plans publicly via an updated form of environmental impact statement, thus requiring an impact analysis and triggering a more informed public conversation about privacy. The Article first explains how mass surveillance is polluting public privacy and surveys the limited and inadequate doctrinal tools available to respond to mass surveillance technologies. Then, it provides a quick summary of the Privacy Impact Notices (“PINs”) proposal to make a case in principle for the utility and validity of PINs. Next, the Article explains how environmental law responded to a similar set problems (taking the form of physical harms to the environment) with the National Environmental Policy Act of 1969 (“NEPA”), requiring Environmental Impact Statement (“EIS”) requirements for environmentally sensitive projects. Given the limitations of the current federal privacy impact analysis requirement, the Article offers an initial sketch of what a PIN proposal would cover and its application to classic public spaces, as well as virtual spaces such as Facebook and Twitter. The Article also proposes that PINs apply to private and public data collection—including the NSA’s surveillance of communications. By recasting privacy harms as a form of pollution and invoking a familiar (if not entirely uncontroversial) domestic regulatory solution either directly or by analogy, the PINs proposal seeks to present a domesticated form of regulation with the potential to ignite a regulatory dynamic by collecting information about the privacy costs of previously unregulated activities that should, in the end, lead to significant results without running afoul of potential U.S. constitutional limits that may constrain data retention and use policies. Finally, the Article addresses three counterarguments focusing on the First Amendment right to data collection, the inadequacy of EISs, and the supposed worthlessness of notice-based
Organized labor’s judicial, political, and public image is often associated with violence and anarchy. This image has reinforced significant legal constraints on public protests, boycotts, and picketing orchestrated by labor organizations. Although violent uprisings that challenged the political and economic order were common in the early days of American labor unionism, the assumptions underlying past judicial rhetoric and labor law doctrine have largely outlived their
original context. Historical antecedents applied to modern protests characterized by civil disobedience and nontraditional methods of group mobilization like Fast Food Forward, OUR Walmart, and the Occupy Movement yield troubling and inconsistent results. Although these tensions have not gone unnoticed, scholarly
commentary to date has overlooked the important connection between the collective, group-based nature of labor activism and the First Amendment’s right of assembly, and how the history of assembly can inform contemporary protections for labor unionism. We seek to draw the lessons of assembly squarely into contemporary labor law - to re-assemble labor law around the theory and doctrine of assembly that formed its early core. We begin in Parts II and III by situating the historical relationship between labor and assembly. Part IV develops three theoretical insights reinforced by the connections between assembly and labor, and obscured by the contemporary focus on the rights of speech and expressive association. First, collective activity represents more than simply an aggregation of individual voices. Second, groups are not one-dimensional but have many functions, purposes, and messages, which are developed and negotiated through collective expression and existence. Third, expression depends on the context in which it unfolds, and current doctrine too easily obscures that context, with significant ramifications for both public perception and group efficacy. Part V applies these theoretical insights, suggesting how the gains of assembly might facilitate a richer understanding of labor unionism, labor law, and their connections to the rest of First Amendment jurisprudence.
Multistate Justice: Better Law, Comity, and Fairness in the Conflict of Laws
Joseph William Singer | 2015 U. Ill. L. Rev. 1923
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The saying goes “hard cases make bad law.” In the field of conflict of laws, hard cases make bad law when we unduly oversimplify them, seeking tidy solutions for untidy facts. In order to avoid this oversimplification, and give both states’ and both parties’ interests due weight, we should focus on three norms: Substantive Justice (what conflicts scholars call “better law”), Comity, and Fairness and the Protection of Justified Expectations. We must recognize the policies of both states, the rights of both parties, and provide a reasonable justification for applying one state’s law over the other. The first step in any conflict of laws analysis is to analyze charitably the potential interests of both states and the entitlements of both parties. Such analysis will allow us, first, to identify false conflict cases: cases where one state really does not have an interest in applying its law. These cases include certain common domicile cases, certain lonely domicile cases, and certain fortuitous injury cases. In true conflict of laws cases, or “hard” cases, a justification that could be accepted by all parties for
applying one state’s law over the other is vital. Often, (but not always) the “better law” analysis will provide the most compelling justification in true conflict of laws cases. All modern forms of conflict analysis include consideration of “better law”; they just call it something else. The sooner we recognize the relevance of “better law,” the sooner we
can give it its proper place alongside comity and fairness in understanding and adjudication conflicts of law. Hard cases may not necessarily make bad law—and it may take frank application of “better law” to resolve them.
The following is a tribute to esteemed Law Professor, Brainerd Currie. Currie was a renowned scholar in the field of Conflict of Laws and sought to use his knowledge and passion for the law to shape the lives of his students, including Herma Hill Kay. Professor Kay highlights her relationship with Currie during her time at the University of Chicago Law School, and how Currie inspired her decision to go into legal academia herself.
Hard Cases, Single Factor Theories, and a Second Look at the Restatement 2D of Conflicts
Lea Brilmayer | 2015 U. Ill. L. Rev. 1969
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The modern academic and judicial critics whose attacks brought down the First Restatement of Conflicts repeated more of the First Restatement’s mistakes than they might care to admit. This Article deals with a largely unexplored difficulty common to the First Restatement and modern interest-based theories: because both are ‘‘single factor’’ theories, in ‘‘hard cases,’’ they sometimes call for the application of one state’s law to disputes that are overwhelmingly
connected to a different state. This has resulted in dubious decisions, as judges have tried to avoid such irrational and arbitrary results. This Article begins by explaining the difficulties inherent in ‘‘single factor’’ theories. It then explains how the Restatement 2d of Conflicts avoids these problems relatively successfully, although at a cost of decreased certainty and predictability.
This Article proposes a radical transformation in the way ALI Restatements are written in the field of choice of law. It argues that the projected new Restatement (Third) of Conflict of Laws, insofar as
choice of law is concerned, can and should be built on the best foundation we have—the constitutional opinions of the United States Supreme Court dealing with the conflict of laws, and the application of the Court’s methods to common-law conflicts. Offering critical commentary on current cases, the Article proposes a different way of classifying and organizing cases, not by kind of claim, but rather by kind of conflict. This can be achieved through familiar analytic methods, and tested against constitutional ground rules. The Article carries interest-analytic thinking to its logical conclusions to create a complete system of choice of law
European Conflicts Law After the American “Revolution”—Comparative Notes
Peter Hay | 2015 U. Ill. L. Rev. 2053
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This symposium looks at American Conflicts Law fifty years after Brainerd Currie’s death and asks, “where is it going?” This Article examines whether the American “revolution” has impacted European
conflicts law or whether the European developments, conversely, hold lessons for American law. In particular, the role of renvoi and dépeçage illustrate areas of departure between the two systems and shed light on where American conflicts law is—and should—be going.
This Note argues that lawmakers and judges have not been applying the concept of legal personhood correctly, and should divorce the idea of humanity for the legal definition of personhood. The term “legal person” has long been associated with humanity, and even the paradigm of artificial persons, corporations, relies upon analogizing to humanity. Some humans which have been attributed legal personhood status, however, have comparable abilities to exercise rights and duties as many animals, while other humans have no such abilities at all. This implies that one can have the attributes of legal personhood without being a human being, and one can be a human being without being a legal person. The solution is to divorce the capacities-focused definition of legal personhood from the species-based definition of humanity.
It’s About Time: Reconsidering Whether Laches Should Lie Against the Government
An Nguyen | 2015 U. Ill. L. Rev. 2111
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Throughout all facets of life, private parties experience deadlines and suffer the consequences if they fail to meet them. The law, too, has various forms of deadlines that preclude parties from filing suits or asserting claims when a certain amount of time has passed. The particular legal deadline known as laches allows the court to dismiss a claim if the filing party’s unreasonably delayed filing unduly prejudices the other party. This Note examines the historical policy that
precludes parties from raising the defense of laches against the government when it is bringing the suit. This Note discusses the longstanding assumption that the laches defense cannot be asserted against the government while highlighting a growing trend that has begun to question this assumption. In light of Judge Richard Posner’s declarations in United States v. Administrative
Enterprises, this Note examines possible solutions to the question of whether laches should be asserted against the government. This Note recommends that courts abandon the long held view that the laches defense is inapplicable against the government and permit the defense under certain circumstances.
Taxing the Keg: An Analysis on the Potential Effects of Changing the Federal Excise Tax on Beer
Bryce Pfalzgraf | 2015 U. Ill. L. Rev. 2141
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Beer and the federal taxation of alcohol have brewed an interdependency in American history since the eighteenth century. In the last forty years, however, the advent of the craft beer industry has profoundly shaped the brewing landscape in the United States. In response to this change, Congress has proposed alternative pieces of legislation that would amend the Internal Revenue Code and the federal taxation of beer: the Brewers Excise and Economic Relief Act (“BEER Act”) and the Small Brewer Reinvestment and Expanding Workforce Act (“Small BREW Act”). The BEER Act would make broad cuts to the existing excise tax, favoring large and small breweries alike. The Small BREW Act, by contrast, would reform the excise tax modestly, benefitting small breweries only. This Note explores the future of the federal excise tax on beer and its potential impact on the brewing industry and society at large. It begins by detailing the history of brewing in the United States, as well as specific changes the BEER Act and the Small BREW Act would have on the existing excise tax. This Note will then perform economic analyses on the two acts using theoretical and comparative approaches. In doing so, it will detail the foreseeable impacts of the BEER Act and Small BREW Act and consider the health implications
of each proposed law. This Note urges that Congress adopt the Small BREW Act. The Small BREW Act’s targeted tax cuts for small breweries will enhance market competition and foster sustained success of craft beer businesses. Given its limited scope, the Small BREW Act will also minimize losses of federal excise tax revenues and curtail the health and societal concerns associated with this proposed tax reform.