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U.S. Supreme Court Accepts Cell Phone Privacy Case with Transnational Implications
No full textA privacy case headed to the U.S. Supreme Court will give justices an opportunity to examine “the third-party doctrine” in U.S. constitutional law. The doctrine manifests a central feature of American privacy policy, marking a divide that has flummoxed transnational data transfer negotiators
What Does It Mean to Say that Procedure is Political?
No full textAn appointment to the committee that reviews and amends the Federal Rules of Civil Procedure is unlikely to earn you any friends these days. The Advisory Committee on Rules of Civil Procedure (“the Advisory Committee” or “the Committee”) routinely finds itself at the center of controversy as it undertakes its mission to improve the rules that govern civil matters in our federal courts.
Attorneys and parties who often appear in federal court criticize not only the product of the Advisory Committee\u27s work but also the integrity of its members. There is no shortage of commentary charging procedural reform with political maneuvering. Scholars have documented the sociological makeup and political affiliation of the Advisory Committee; they have mapped industry lobbying on procedural matters in both Congress and with the Committee itself. Many have argued that procedure has been a blunt political instrument, with rulemakers, courts, and Congress all engaging in civil procedure reform to achieve political ends through seemingly apolitical means.
Most recently, the discussion of procedure\u27s politics has centered on discovery reform, especially upon the reform efforts that culminated in the 2015 amendments to the Federal Rules of Civil Procedure. One of the centerpieces of that reform process was the 2015 amendments\u27 adoption of “proportionality” as a key standard to lower costs and increase discovery efficiency. The proportionality amendment was among the most controversial amendments the Advisory Committee proposed.
Perhaps because of the highly politicized context of discovery reform, the Advisory Committee has tended to engage in what it hopes will be objective or empirical criteria. The concept of proportionality took center stage as an objective criterion and as a means of furthering another objective aim: “efficiency.” Unfortunately for the Advisory Committee, this retreat into the appearance of objectivity did not silence the critics, likely because the concepts deployed in analyzing efficiency are neither objective nor coherent. A century ago, in a different doctrinal context, Robert Hale helped to expose the limits of judicial objectivity. This Article presents Professor Hale\u27s analytical critique as a helpful model for how to think about judicial branch rulemaking when political judgment is inescapable. In part, this Article is motivated by a desire to further the scholarly assessment of procedure\u27s political role, while turning away from the assessment of individual ideological commitments and material interests of constituent parties.
Procedure is not the first field of law to face controversy along these lines. Law\u27s independence from politics, in both its descriptive and normative aspects, is a century-long legal challenge. This Article aims to clarify what we mean when we characterize procedure as political, as well as to understand some of the harms generated by failing to confront and acknowledge the political. This is a preliminary step in approaching future formulations of procedural rules if they cannot be depoliticized
Services and Resources for People Living with HIV/AIDS in the Southcoast of Massachusetts: “Can’t Get There From Here!”
Full text linkFall River and New Bedford, two diverse and economically challenged cities in the Southcoast region of Massachusetts, are areas of substantial concern in the effort to reduce HIV incidence and to provide effective services for people living with HIV/AIDS in the Commonwealth. In these two communities, HIV disparately impacts marginalized populations, with particularly high infection and prevalence rates among men who have sex with men and injection drug users in comparison to other Massachusetts localities. This project used community engaged research principles to conduct a community assessment guided by the social determinants of health. The primary goal of this study was to identify the gaps in resources and services and highlight challenges and barriers to treatment for people living with HIV/AIDS in Fall River and New Bedford, Massachusetts. Transportation was a major barrier in not accessing available community services and resources
The Ebola Virus Prevention and Human Rights Implications
Full text linkThe Ebola virus and its now infamous 2014 West African outbreak have constituted the deadliest and most terrifying epidemic of recent memory. Not only does the epidemic now carry an already ghastly backdrop in the public mind when discussions around it begin, but, like the AIDS epidemic, cultural practices have contributed to the entrenchment of Ebola in Africa, compounded by weak human rights laws and stigmatization, all of these factors having contributed to the multi-faceted and complex nature of addressing the problem of eliminating this disease in Africa. This article examines the African countries that have been plagued by the recent outbreak, as well as the U.S. response to Ebola when brought to its shores. It also considers the human rights implications that are invariably intertwined with the prevention of Ebola, as well as the various ethical aspects that have surrounded the response. The article further examines the possible extent to which sub-Saharan African states may be able to leverage the flexibility of the so called Agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPS”) to provide access to Ebola medical advances for their citizens. Lastly, this article will look at the Siracusa Principles, which outlines the circumstances within which restriction of human rights are justified, and will analyze the conduct of international responders, including the African Union, the CDC, WHO, and others
Your Mission, Should You Choose to Accept It: Taking Law School Mission Statements Seriously
Full text linkA law school can best achieve excellence and have the most effective academic program when it possesses a clear mission, a plan to achieve that mission, and the capacity and willingness to measure its success or failure. Absent a defined mission and the identification of attendant student and institutional outcomes, a law school lacks focus and its curriculum becomes a collection of discrete activities without coherence
Uber’s Dilemma: How the ADA May End the On-Demand Economy
Full text linkThis article is the first to point out that a few relatively low-profile lawsuits involving Uber’s liability under the ADA could have an outcome-determinative effect on O’Connor v. Uber Technologies, Inc., the blockbuster employment misclassification case brought against the startup by its own drivers. Because both types of lawsuits hinge on the role that drivers play within Uber’s business model, a ruling in favor of ADA liability which compelled Uber to exert additional control over its drivers would also, in turn, jeopardize the drivers’ legal status as independent contractors. Such an outcome would be catastrophic to Uber’s core business model, costing the company hundreds of millions—if not billions—of dollars. And because Uber is but one of hundreds of Silicon Valley startups to have adopted a similar business model, a misclassification ruling against the tech giant could set in motion a domino effect that impacts scores of companies throughout the “on-demand” economy. Hundreds of millions, if not billions, of dollars may hang in the balance of a few ADA cases. So, too, may the rights of some 57 million Americans with disabilities, for whom victory could come to represent a major civil rights milestone
Spring 2017 Newsletter: The Docket
Full text linkCopy of the Spring 2017 issue of the UMass Law Library Newsletter, The Docket
Accountability in the Private Sector: African Ambition for Right to Information in India
No full textThe right to information (RTI) has come to recognition as a human right in international law. Conventionally, RTI is a means for a person to demand information from a public body. RTI has proven especially potent in the hands of journalists, who seek information on behalf of the electorate to hold public institutions accountable. But in the recent decades in which RTI has attained human rights stature, power in society has shifted in substantial measure from public to private sector. Journalistic inquiry is frustrated by the inapplicability of access laws to private bodies. In India, direct access to the private sector through RTI law was considered and rejected in the 1990s; however, the 2005 RTI Act allows a generous measure of access to non-governmental actors with public ties. A legal movement has been gaining steam in Africa to push past the public-private divide and recognize the importance of RTI to protect human rights regardless of the public or private character of the respondent. Different approaches are emerging with respect to journalist access in the African model. Amid trending privatization and burgeoning private power, the time might be coming for India to reconsider the road not taken
Predictive Surveillance and the Threat to Fourth Amendment Jurisprudence
No full textThis Article explores how the use of predictive surveillance to prevent terrorist and criminal activity may shape Fourth Amendment law. Predictive surveillance refers to a potential model of surveillance in which government collects data in bulk and then uses predictive analytics to detect patterns indicating terrorist or criminal activity. The existing model of surveillance regulation presumes that the government’s first step is to target a specific person. Therefore, the first analytical step in evaluating the constitutionality of a given surveillance practice is to determine whether the government had sufficient particularized suspicion about the target. Predictive surveillance, however, confounds the existing model because it requires collection of massive amounts of data with no particularized suspicion. Despite that disconnect, judges will face great pressure to twist existing doctrine rather than ban the data collection that the government claims is necessary to fight terrorism or crime. Assuming that courts will be predisposed to find predictive surveillance constitutional, this Article explores the various doctrinal approaches that courts could take to approve predictive surveillance and assesses the risk that each approach poses to Fourth Amendment doctrine.
Part I introduces the concept of predictive analytics and describes predictive surveillance as a potential application of predictive analytics. Part II first identifies the technical and political challenges that the government will face if it tries to implement predictive surveillance and then discusses the reasons to believe that researchers and political actors will overcome these challenges. Part III describes why predictive surveillance threatens Fourth Amendment doctrine itself and offers a cautionary tale of how courts evaluating a prior mass surveillance program twisted the statutory language to authorize the program. Part IV discusses the different ways that courts could apply the Fourth Amendment’s third-party and public-exposure doctrines to predictive surveillance and then assesses how each approach could affect the development of those doctrines. Finally, Part V discusses the different ways that courts could apply the Fourth Amendment reasonableness standard to predictive surveillance and assesses how each approach could affect the reasonableness standard
Babies Aren\u27t U.S.
Full text linkParental leave has been an on-going issue in the political process, most recently during this presidential election. This is because upon the birth or adoption of a child, many in the United States cannot afford to take time off from work to care for and integrate children into their families. This is especially true for the contemporary family. The Family and Medical Leave Act of 1993 (FMLA) was Congress’s attempt to strike equilibrium between employment and family and medical needs. The FMLA put legal emphasis on the family unit in an effort to neutralize gender discrimination while promoting gender equality for women in the workplace. In its time, the FMLA was a step in the direction of today’s trend, where longer, compensated parental leave is required. However, in this day and age where both parents often work full-time jobs, the FMLA has fallen flat. In this article, I argue that the FMLA must be expanded to adequately fulfill the work-family balance.
This article critiques the policy and purpose of the Family and Medical Leave Act of 1993. It will also examine the international approach and how the policies of most industrialized nations have surpassed that of United States, exemplified best by some states willingness to address the trend and implement more modern policies. I argue the FMLA is outdated when considering today’s structure of families, fails to align with family values, and is not in the best interests of children, and propose the New York system with some modifications be adopted nationally