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Barcoding Bodies: RFID Technology and the Perils of E-Carceration
Get PDFElectronic surveillance now plays a central role in the criminal legal system. Every year, hundreds of thousands of people are tracked by ankle monitors and smartphone technology. And frighteningly, commentators and policymakers have now proposed implanting radio frequency identification (“RFID”) chips into people’s bodies for surveillance purposes. This Note examines the unique risks of these proposals—particularly with respect to people on probation and parole—and argues that RFID implants would constitute a systematic violation of individual privacy and bodily integrity. As a result, they would also violate the Fourth Amendment
History and Tradition? : Anatomy of a Constitutional Revolution
No full textThis year\u27s featured speaker for the Brainerd Currie Memorial Lecture is Professor Noah Feldman, Felix Frankfurter Professor of Law at the Harvard Law School. He specializes in constitutional studies with emphasis on power and ethics, design of innovative governance solutions, law and religion, and the history of legal ideas. His lecture is titled History and Tradition? Anatomy of a Constitutional Revolution. The Currie Lecture began over 30 years ago to honor Professor Brainer Currie who was formerly on the Duke Law School faculty
Arbitrating Corruption
Get PDFOne of the most controversial issues in international investment law is how arbitral panels should deal with investments tainted by corruption at their inception. The current practice of investment arbitrators is to refuse to hear investors’ claims when bribery allegations are substantiated. A recent wave of scholarship has attacked this “corruption defense,” arguing that the practice unfairly harms investors and encourages governments to maintain corrupt practices. This Essay responds to that scholarship, arguing that the current approach is the best policy choice on balance. The Essay analyzes three core policy questions at the heart of the debate: Would eliminating the corruption defense lead governments to adopt meaningful anti-corruption reform? Does corrupt foreign investment improve economic and political conditions in the host states to a sufficient degree to warrant investment protection? Do the governments establishing investment treaties that set the contractual terms between states want investment protections for corrupt investment? In answering all three questions in the negative and placing the issue within the broader context of transnational anti-corruption law, this Essay provides the theoretical foundation necessary for supporting the current practice
Joshua D. Blank & Leigh Osofsky, Democratizing Administrative Law
No full textPanel 3: 12:30 pm – 1:45 pm Article: Joshua D. Blank & Leigh Osofsky, Democratizing Administrative Law Panel: Joshua D. Blank, Leigh Osofsky, Jim Rossi, Margaret Kwoka, and Jedediah Purdy (moderator
Sharing Pathogen Sequence Data for Global Scientific Research under the Nagoya Protocol to the Convention on Biological Diversity
No full textThe Nagoya Protocol to the Convention on Biological Diversity (CBD) has threatened to impede access to genetic resources and related data for cross-border scientific research. In principle, every use of genetic resources would require a set of contracts under the CBD, in a “bilateral” regime. The related transaction costs could overwhelm many transnational research undertakings, affecting even public health responses to outbreaks and epidemics. However, the Nagoya Protocol also offers a unique opportunity to resolve this dilemma, despite struggles to define the meaning and coverage of “digital sequence information.” The coverage of genetic sequence data under the CBD remains controversial mainly because users do not know what the potential consequences of such coverage might ultimately entail. This chapter’s objective is to outline a type of coverage devised specifically for pathogens that would promote science, public health, and commercial applications while also protecting the interests of provider countries, supporting innovation, and addressing inequalities. The authors envision an agreed waiver for pathogen sequence data used for upstream scientific research purposes under the Nagoya Protocol, without compromising the duty of users to share benefits. This waiver should help alleviate the problems of definition and subject-matter coverage that have stymied multilateral action
(CTRL + F)ourth Amendment Searches of Digital Storage Devices: A Novel Framework
Get PDFJudges frequently analogize physical precedents when applying Fourth Amendment law to searches of digital storage devices. But these analogies do not map well from physical to digital spaces because they overlook fundamental structures of digital storage. And the stakes are high—courts’ errors lead to oversearches that irreparably harm device owners regardless of the suspects’ guilt or innocence. This Note examines the structure of common digital storage devices and courts’ erroneous attempts to apply Fourth Amendment law to them.
This Note also proposes a novel two-phase framework that would curb oversearch. The framework uses a forensic program to conduct a limited analysis of digital devices to estimate the probability that the device contains the sought-after evidence. Judges then use that probability when weighing the reasonability of a thorough search of the device. By expanding the reasonability determination for the search and seizure of digital devices, this Note’s proposed framework would reduce oversearch and improve conformity with traditional Fourth Amendment law
Relocating Justice
Get PDFManaged retreat—the planned relocation of people facing imminent climate threats—is an inevitable part of future climate adaptation in the United States. Given that Black, Brown, and low-income communities are disproportionately vulnerable to climate hazards, managed retreat has significant justice implications. This Article explores what I call an apparent “justice paradox”—two “justice problems” with managed retreat that seem to point to opposite solutions. On the one hand, managed retreat can be inaccessible to marginalized communities, many of whom lack the resources to successfully navigate the relocation process. This justice problem suggests that decision-makers should prioritize managed retreat for marginalized communities since they are in greater need of relocation assistance. On the other hand, managed retreat can disproportionately harm marginalized communities, who may experience greater relocation-related psychosocial and financial harms. This justice problem suggests that decision-makers should avoid managed retreat for marginalized communities.
This Article argues that although these justice problems appear to indicate opposite solutions, they in fact reveal the same structural flaws with our current approach to climate-induced relocation and therefore call for the same remedies. First, both justice problems reflect the logic of racial capitalism and, specifically, the limitations of market-based economic approaches to managed retreat. Second, both problems manifest the ongoing failure to conceptualize and seize managed retreat as an opportunity to redress historic and systemic injustices. Finally, both problems are rooted in a lack of self-determination for marginalized communities facing climate threats. Addressing these structural issues will require fundamental transformations in how we think about climate adaptation