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A Distinction with a Difference: Rights, Privileges, and the Fourteenth Amendment
Get PDFIn Timbs v. Indiana, the Supreme Court held the Eighth Amendment’s prohibition on excessive fines was incorporated and applied to states through the Due Process Clause of the Fourteenth Amendment. While the decision was unanimous, the concurring opinions offered a revealing reflection of past constitutional battles and an intriguing vision of future conflicts. Both Justices Gorsuch and Thomas suggested resurrecting the Privileges or Immunities Clause as a more appropriate vehicle than the Due Process Clause for applying the prohibition on excessive fines to states.
Justice Thomas took this proposal one step further. He suggested the Privileges or Immunities Clause should be used instead of the Due Process Clause to address all fundamental rights. This would not be a simple exchange of constitutional sources to guide incorporation; the actual scope of fundamental rights would also be affected. Unlike the Due Process Clause, Justice Thomas found the Privileges or Immunities Clause to be more grounded in history and tradition, thereby offering the Court a guiding principle for distinguishing “fundamental rights that warrant protection from nonfundamental rights that do not.” The Privileges or Immunities Clause would allow for the application of the Eighth Amendment’s prohibition on excessive fines to states. But under this approach, other rights, such as abortion or same-sex marriage, would not be considered privileges of “American citizenship” entitled to constitutional protection.
The consequences of resurrecting the Privileges or Immunities Clause at the expense of the Due Process Clause are troubling and far-reaching. Renouncing over a century of precedent would result in the radical transformation of constitutional law and the weakening of fundamental rights. In the realm of the Fourteenth Amendment, rights and privileges are a distinction with a difference
Harm, Sex, and Consequences
Get PDFAt a moment in history when this country incarcerates far too many people, criminal legal theory should set forth a framework for reexamining the current logic of the criminal legal system. This Article is the first to argue that distributive consequentialism, which centers the experiences of directly impacted communities, can address the harms of mass incarceration and mass criminalization. Distributive consequentialism is a framework for assessing whether criminalization is justified ft focuses on the outcomes of criminalization rather than relying on indeterminate moral judgments about blameworthiness, or desert, which are often infected by the judgers\u27 own implicit biases. Distributive consequentialism allows for consideration of both the harms of the conduct and the harms of criminalization itself It brings an intersectional approach to criminal legal theory by examining the distribution of harm, centering the experience of populations that face intersectional forms of subordination, and viewing the criminal legal system suspiciously. This Article adopts a distributive consequentialist analysis to examine the continued criminalization of sex work as just one example of how the theory can be applied This application demonstrates how engaging in a distributive consequentialist analysis is a step toward reining in a system that seems to be ever-expanding and reframing a criminal legal theory that has grown ambivalent about this expansion
From Court Martial to College Campus: Incorporating the Military’s Innovative Approaches to Sexual Violence into the University Setting
Get PDFMarketing Medicine to Millennials: Preparing Institutions and Regulations for Direct-to-Consumer Healthcare
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Consentability: Consent and Its Limits (Introduction)
No full textProblems regarding the nature of consent are at the heart of many of today’s most pressing issues. For example, the #MeToo movement has underscored the need to move beyond viewing consent as a simple matter of yes or no. Consent is complex because humans and their relationships are complicated. Humans, as a result of cognitive limitations and emotional and physical vulnerabilities, are susceptible to manipulation and mistakes. Given the potential for regret, are there some things to which one should not be permitted to consent? The consentability quandary becomes more urgent with technological advances. Should we allow body hacking? Cryonics? Consumer travel to Mars? Assisted suicide? In Consentability: Consent and Its Limits, Nancy Kim proposes a bold, original framework for evaluating consentability, which considers the complexities surrounding consent
Data-Centric Technologies: Patent and Copyright Doctrinal Disruptions
Get PDFData-centric technologies create information content that directly controls, modifies, or responds to the physical world. This information content resides in the digital world yet has profound economic and societal impact in the physical world. 3D printing and artificial intelligence are examples of data-centric technologies. 3D printing utilizes digital data for eventual printing of physical goods. Artificial intelligence learns from data sets to make predictions or automated decisions for use in physical applications and systems. 3D printing and artificial intelligence technologies are based on digital foundations, blur the digital and physical divide, and dramatically improve physical goods, objects, products, or systems. Data-centric technologies have crossed national borders and rapidly attained adoption, even while patent law and copyright law have been slow to respond. This Article focuses on 3D printing and artificial intelligence technologies and their doctrinal disruptions through a conceptual matrix formulation. It describes how recent litigation over data-centric technologies has repercussions for creators and inventors in the protection of data-centric innovations. Data-centric technologies’ doctrinal disruptions necessitate reevaluation of copyright and patent doctrines, which were spawned in an era of human/physical considerations to now including human/digital, non-human/physical, and non-human/digital considerations. The future of patent law and copyright law will be dominated by non-human/digital considerations and will impact innovation policy
Ambiguity and Consumer Perceptions of Risk in Various Areas of Biotechnology
No full textCertain advances in biotechnology generate controversy, with consumer resistance derived from publicly expressed concerns about safety, despite scientific evidence of safety. The reasons for this discrepancy are not fully understood. This study aimed to understand how participants respond to biotechnology when some ambiguity about risk or uncertainty is presented. A sample of 318 adults completed a survey assessing aversion to ambiguous information in controversial areas such as food, vaccines, fluoridated water, and stem cell research. Participants responded to ambiguity assessments and 14 scenarios in these categories that contained a description of a benefit and either missing or conflicting information about an unknown risk or uncertainty. Participants who reported greater aversion to ambiguity tended to respond in a way that signals the assignment of high risk, and low benefit, when presented with some unknown or uncertain risk. The results of the present study can be used to develop methods to close the divide