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Originalism’s Stare Decisis Problem: The Place of Precedent in Theories of Interpretation
Get PDFOriginalism is a prevalent approach to legal interpretation, and stare decisis is a prevalent legal doctrine. Yet, the two do not happily coexist. This article explores the role that stare decisis plays in originalism and living constitutionalism, with a focus on the doctrine’s impact on each theory’s integrity in both academic and lay circles.
Originalism runs into trouble on two levels. First, it is self-defeating in theoretical terms, as it treats stare decisis as a “pragmatic exception” to an interpretive theory premised on excluding policy considerations from legal analysis. Second, it undermines judicial legitimacy by failing to provide the public with a satisfying and plausible account for why a court’s interpretation changes over time. Thus, stare decisis creates a catch-22 for originalism; the first problem demands that originalists adopt weak stare decisis and the second that they adopt strong stare decisis.
Living constitutionalism, in contrast, can more easily accommodate stare decisis. Precedent, especially landmark Supreme Court cases, can impact shared understandings and thus become constitutive elements of the meaning of ambiguous legal terms. In this way, stare decisis does not expose living constitutionalism to the same type of academic criticism because precedent is not an obstacle to, but a necessary component of accurate interpretation. Likewise, the fundamental precept of living constitutionalism is that the Constitution’s meaning can change over time, which provides the public with an explanation for legal change that is not tied to prior judicial error.
Finally, after diagnosing originalism’s difficulties with stare decisis, this article proposes a novel theory of a “barely evolving Constitution” that has the potential to create a more harmonious relationship between originalism and stare decisis. This theory combines a principled explanation for adherence to super precedent with originalism’s central tenet, namely, that the original public meaning of the Constitution usually controls
Generative Privacy Doctrine: The Case For A New Legal Privacy Framework For Gen^Ai
Get PDFFrom quills to queries, from secrets once scrawled in private to personal prompts on glowing screens, debates over privacy rights endure. Generative Artificial Intelligence (GenAI) further confounds by conflating confession with code, and intimate thoughts with algorithms. Although technologists have predicted AI’s ascent before, and have critically assessed privacy rights for decades, the unprecedented engagement with GenAI following OpenAI’s public launch of ChatGPT marks a distinct moment— one where a generation of rights holders actively builds and converses with emerging platforms while the law strains to keep pace.
Existing privacy doctrines are ill-prepared for GenAI’s dynamic data processing and its power to extract insights from seemingly benign interactions. Appellate decisions like United States v. Warshak (6th Cir.)(recognizing email’s heightened privacy expectations), and hiQ Labs, Inc. v. LinkedIn Corp. (9th Cir.)(questioning limits on data scraping), along with Supreme Court precedent such as Carpenter v. United States (applying mosaic theory to reveal “deeply revealing” data), signal evolving protections in the digital realm. Yet these precedents do not fully anticipate GenAI’s capacity to co-create novel personal information.
This article argues we have reached a critical juncture requiring a refreshed legal framework. It introduces the term “Gen^AI” to highlight this unique convergence: a technological leap (GenAI) and the generation navigating its constitutional and privacy implications (the AI Generation). In response, it offers the Generative Privacy Doctrine (“GPD”)—a flexible legal framework that recalibrates privacy rights in real time. GPD tackles inferential data creation, mandates iterative user consent, and imposes carefully tailored third-party restrictions that deter exploitative or discriminatory use. Aligning with global data-protection norms (e.g., the GDPR) and clarifying domestic principles (including the “third-party doctrine” and contractual consent), GPD offers a way to protect individual dignity without stifling AI innovation
Hashtags, handcuffs, and hush money: inequitable application of the Fourth Amendment in electronic surveillance
Get PDFA wealthy executive buries misconduct behind corporate nondisclosure agreements (NDAs) and encrypted devices. Nearby, police wield geofence warrants to sweep the digital footprints of peaceful protesters demanding racial justice. Both scenarios hinge on the same Fourth Amendment but reveal a coin with two faces. For powerful abusers, privacy protections can conceal assault, intimidation, and corruption. For Black activists, rapidly emerging surveillance tools—including biometric scanners, phone “pings,” and social media mining—intensify a long legacy of racially targeted policing. As Jeannie Suk Gersen notes, two recent social movements– #MeToo and Black Lives Matter–reveal that “too much deference to privacy serves male entitlement, on the one hand, and insufficient deference to privacy serves white supremacy, on the other.” Juxtaposing these realities, #MeToo reveals how constitutional protections can shield the privileged from accountability, while Black Lives Matter (BLM) reveals how those same doctrines can enable hyper-surveillance of Black communities. The digital era brings the troubling split into crisp focus: encryption and legal secrecy for those with privilege versus wholesale data sweeps for those without. This Note argues that acknowledging the disproportionate and often intersectional impacts of race, gender, and economics on Fourth Amendment applications is essential for transforming lofty constitutional promises into genuine safeguards against technologically amplified oppression
‘Cruel and Unusual’ in 1689, 1791, and 1868: Shifts in Incorporation
Get PDFRecently, the Supreme Court has acknowledged the scholarly debate over whether to apply the historical understanding of the Bill of Rights as ratified in 1791 or as incorporated through the Fourteenth Amendment in 1868. This acknowledgment raises two important issues with regards to the Cruel and Unusual Punishments Clause. First, the Cruel and Unusual Punishments Clause was copied from the English Bill of Rights in 1689, generating a third, additional time period relevant to its historical understanding. Second, the more textualist framework of the Cruel and Unusual Punishments Clause allows for more relatively bounded language and interpretation, which could remain unchanged through each time period. And if the Eighth Amendment’s textual principles could remain intact, even while its expected applications changed over time, each incorporation would represent a shift in construction rather than in a shift in interpretation. As such, the Cruel and Unusual Punishments Clause maintains its longstanding function of prohibiting punishments that are unjustifiably more severe (cruel) and contrary to the ordinary standards of law (unusual) despite changing expected applications against extralegal courts, federal overreach, and discrimination