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Big Agriculture and Harm to Minority Communities: How Administrative Civil Rights Complaints Are the Solution
Get PDF“My Computer Is My Castle”: New Privacy Frameworks to Regulate Police Hacking
Get PDFSeveral countries have recently introduced laws allowing the police to hack into suspects’ computers. Legislators recognize that police hacking is highly intrusive to personal privacy but consider it justified by the increased use of encryption and mobile computing—both of which challenge traditional investigative methods. Police hacking also exemplifies a major challenge to the way legal systems deal with, and conceptualize, privacy. Existing conceptualizations of privacy and privacy rights do not always adequately address the types and degrees of intrusion into individuals’ private lives that police hacking powers enable.
Traditional privacy pillars such as the home and secrecy of communications do not always apply to computer-based police investigations in an era of mobile technologies and ubiquitous data. In this Article, we conduct a comparative legal analysis of criminal procedure rules in the United States, Germany, Italy, the Netherlands, and the United Kingdom to see which privacy frameworks lawmakers and courts apply when regulating police hacking. We show that while classic privacy frames of inviolability of the home and secrecy of communications remain adequate for some forms of police hacking (observation and interception), they fail to capture novel and fundamentally different ways in which the most intrusive forms of police hacking (covert online searches and remote surveillance) impact privacy in twenty-first-century society.
Our analysis shows the emergence of two new frameworks that have the potential to begin filling this void: 1) a container-based approach, focusing on the computer as protection-worthy in itself—or the “informatic home;” and 2) a content-based approach, focusing on the protection of data—or “informatic privacy.” Since both approaches have valuable benefits and potential drawbacks, we propose that a complementary application of the two might work best to capitalize on their advantages over traditional privacy frameworks to regulate police hacking
Blasting Reproach and All-Pervading Light: Frederick Douglass’s Aspirational American Exceptionalism
Get PDFSome scholars critique American exceptionalism as a proud, uncritical orientation. In this article, however, I argue that Frederick Douglass, an outspoken social critic, qualifies as an American exceptionalist thinker. I first identify and theorize two modes of exceptionalist rhetoric: accomplished exceptionalism, which is self-celebratory and largely uncritical, and aspirational exceptionalism, which is self-critical and reflective. I then provide a close reading of “What to the Slave Is the Fourth of July” to show how Douglass employs aspirational rhetorical techniques. Finally, I discuss the benefits of reading Douglass as an exceptionalist thinker and suggest that his aspirational rhetoric activates reflective and progressive modes of American citizenship
Reporting Certainty
Get PDFLegal theorists, judges, and legal writing instructors persistently decry the assertions of certainty—”obviously X,” “undoubtedly Y,” etc.—that litter judicial opinions. According to the conventional view, the rhetoric of certainty that these assertions epitomize is disingenuous. It also reflects, and even encourages, poor judicial decision-making. And as if that were not enough, it is so unpersuasive that it is counter-persuasive: it signals uncertainty, nonobviousness, etc.—the exact opposite of what its author intends. Judges, for these and other reasons, should abstain from needless assertions of certainty and the myopic thinking they evince. That much is certain.
Yet the rhetoric of certainty persists. Why? To what effect? And how concerned should we be? The typical answers’ logic and empirical assumptions have largely escaped serious scrutiny. This Article begins to fill the gap. It identifies five conventional accounts of the causes, effects, and (uniformly negative) normative implications of judicial certainty rhetoric. After highlighting some intuitive implausibilities in each account, the Article reports new empirical evidence, drawing on an original dataset concerning assertions of certainty and uncertainty in nearly 500 federal appellate opinions and 350 corresponding briefs. These new data cast further doubt on the conventional accounts and suggest an alternative account of judicial certainty rhetoric—one with very different normative implications.
According to this Article’s new “efficient management” account, judges, constrained by individual reputation concerns, credibly and sincerely report certainty relative to a rhetorical baseline that their primary audiences readily presume. Judges thereby provide useful information to other judges, lawyers, and litigants, efficiently managing the judicial system in an era of expanding caseloads, without straying from their proper role. The Article draws from recent philosophical work in the field of “social epistemology” to argue that the practice of reporting relative certainty is not merely efficient, but also epistemically valuable, facilitating the judiciary’s truth-discovery goals. The overall implication is that judges should report their attendant degree of certainty more often, not less. Finally, the Article argues that, while it may well be desirable to shift the rhetorical baseline toward greater levels of expressed uncertainty, doing so may carry unintended consequences, such as (perhaps paradoxically) decreasing judicial deliberation and reducing a particular type of judicial minimalism. In the end, wherever the ideal rhetorical baseline might be, the case against reporting certainty is less certain than is typically suggested