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Opt Out or Pipe Down, You Traded Your Data Away: Balancing Computer Crime Prevention, Third-Party Data, and Individual Privacy Rights
No full textThis article explores the complex issue of governments’ access to thirdparty user data without search warrants in the detection, prevention, and prosecution of computer crimes. Topics under analysis include balancing data privacy and public safety, the application of the Fourth Amendment, and seminal court cases such as Riley, Carpenter, and Smith v. Maryland. Cybercrime poses a significant threat to society, businesses, individuals, and governments. While privacy advocates argue for warrant-based access to user data, individuals readily “opt in” and share their data with companies, raising the question of why stricter standards should apply to government use. This article proposes that the government utilize third-party data in computer crime investigations without warrants. The use of artificial intelligence is proposed to sort and analyze third-party data in an ethical and legal manner
A Government Branch of Its Own: Reining in the Power of the Regents of the University of California
No full textThe University of California system is the crown jewel of American public universities. However, Californians have virtually no say over University of California policies. At the University of California’s inception, the drafters of the 1879 California Constitution envisioned a school system controlled by a Board of Regents who are largely insulated from politics. The autonomy from elected officials and the public allows the Regents to have nearly full control over a public good. The Regents’ autonomy and control over the University of California system has led to conflict between the Regents, the public, and state legislators regarding land use, labor, and tuition increases. The Regents benefit from a vague governmental status, placing them above a state agency but not exactly equal with the three branches of state government. The vague governmental status and outdated constitutional mandate of power allows the Regents to govern the University of California system largely without any checks. This note analyzes possible solutions to rein in the Regents’ power and increase accountability to the public while maintain enough independence to properly govern an ever growing University system
The Road Not Taken: A Critical Juncture in Racial Preferences for Naturalized Citizenship
Get PDFIn the “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel Jack Chin and Paul Finkelman argue that racist results in naturalization have arisen despite, or maybe because of, the race neutral interpretation. This happened in a manner that could have been predicted by the federal government’s attitudes toward non-White persons in the Naturalization Act of 1790 and the nearly unbroken chain of legal developments. This leads them to think of the law as a “super-statute.” While I agree that this is the path actually taken in history, I view the mid-1960s civil rights era as a “critical juncture” when the U.S. government could have taken a counterfactual path that was less racist. The counterfactual path would have required legal interpretations of Constitutional equality and statutory nondiscrimination that remained cognizant of racial implications of purportedly race neutral laws, which was briefly captured in language rights and voting rights statutes in the late 1960s to 1970s. But the egalitarian interpretations unraveled due to contradictions within the liberal national ideology that permitted a post-racial pragmatism about colorblindness that stalled the political incorporation of some non-White immigrants—Asian, Latino/a, Arab—due t their racialization as perpetual foreigners (racialized foreigners)
The Federal Rules of Constitutional Procedure
Get PDFJudicial review has distinct purposes, difficulties, and modalities, but there are no guideposts as to how these features ought to be addressed in procedural terms. The reason is a deep-seated, but largely unarticulated, assumption that constitutional litigation is simply governed by the same rules as other civil litigation in the federal courts. Yet the premise is fundamentally false. This Article draws new attention to rules and practices that have historically regulated constitutional cases and set them apart from the typical way all other cases make their way through the judicial system. These procedures include, among other things, the requirement to convene a three-judge federal district court, direct and mandatory appeal to the Supreme Court, and certiorari before judgment in the courts of appeals. When these specialized rules for constitutional litigation are viewed together, as they should be, it becomes evident that they are part of an important but uncharted area of federal procedural law: constitutional procedure.
This Article elaborates on the implications of a unified discourse on the federal rules of constitutional procedure and challenges some broader themes and popular assumptions about the process of judicial review. First, the Article demonstrates that the American model of judicial review does not by definition reject the use of specialized constitutional tribunals. Second, the Article shows that judicial review in the federal court system is not necessarily diffused and decentralized. Third, and relatedly, the Article uncovers the fact that percolation—allowing issues to work their way through the hierarchy of the federal judiciary—has never been a dominant value in constitutional cases as it is in other types of federal litigation. Finally, and perhaps most significantly, the Article makes it clear that our system of judicial review has never been fully committed to a single procedural framework and that much of constitutional procedure is dynamic and ever-changing. Hence, we must not take for granted the current procedural setting, and we should give attention to the impact of procedural design choices—and those who make these choices—on the outcome of constitutional cases and the legitimacy of judicial review