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Private Rights of Action in Privacy Law
Get PDFMany privacy advocates assume that the key to providing individuals with more privacy protection is strengthening the government\u27s power to directly sanction actors that hurt the privacy interests of citizens. This Article contests the conventional wisdom, arguing that private rights of action are essential for privacy regulation. First, I show how private rights of action make privacy law regimes more effective in general. Private rights of action are the most direct regulatory access point to the private sphere. They leverage private expertise and knowledge, create accountability through discovery, and have expressive value in creating privacy-protective norms. Then to illustrate the general principle, I provide examples of how private rights of action can improve privacy regulation in a suite of key modern privacy problems. We cannot afford to leave private rights of action out of privacy reform.
The Anti-Deference Device: Article 18 of the European Convention on Human Rights
Get PDFThis article makes two principal arguments. First, the limitation on restricting rights that is established by Article 18 of the European Convention on Human Rights is the mirror image of the margin of appreciation doctrine created by the European Court of Human Rights. As such, exploring the metes and bounds of Article 18 aids our understanding of that judicially created doctrine. Parts II and III explore this connection and the origins of this limitation on Member States. The second argument is a practical application of the first one. Russian accession to the Convention and membership in the Council of Europe provides a case study on the importance of Article 18 and the need to overcome a natural reluctance to find that a state has violated it. The deference accorded by the margin of appreciation is the by-product of an assumption of good faith accorded to Member States. When that assumption no longer holds, the Strasbourg Court may be presented not with a case of deserved deference, but of defiance. Article 18 provides the Court with the tool that the drafters of the Convention thought essential to preserve this extraordinary system for protecting human rights. Some of the Court\u27s critics complain about miserly applications of the margin of appreciation. They assert that a failure to give Member States the respect they are due as sovereigns undermines the Convention. But reluctance to call out restrictions on rights made in bad faith is just as dangerous to the system as underappreciation of legitimate differences in the good faith application of Convention requirements. A failure to sanction Member States that restrict rights in bad faith threatens the Convention not by a deficit of respect but by an unwarranted surfeit of it
Affirmatively Resisting
Get PDFThis Article argues that administrative processes, in particular rulemaking\u27s notice-and-comment requirement, enable local institutions to fight back against federal deregulatory efforts. Federalism all the way down means that state and local officials can dissent from within when challenging federal action. Drawing upon the ways in which localities, states, public housing authorities, and fair housing nonprofits resisted the Trump Administration\u27s efforts to roll back federal fair housing enforcement, this Article shows how uncooperative federalism works in practice. Despite the fact that the 1968 Fair Housing Act requires that the federal government affirmatively further fair housing (AFFH), the requirement was largely ignored until the Obama Administration promulgated a new AFFH rule in 2015 that pushed state and local governments to take desegregation seriously. Not surprisingly, the Trump Administration sought to undermine this new rule. But what was surprising was the vigorous resistance the Trump Administration faced from state and local governments seeking to preserve the 2015 rule. Though theories of uncooperative federalism and of administrative federalism abound, there are relatively few examples of how uncooperative federalism facilitates and channels resistance all the way down. State and local government bodies, including sub-local entities such as public housing authorities, leveraged their insider status in order to push back against the Trump Administration\u27s deregulatory move. Given the increased polarization of the country and the reach of cooperative federalism to all levels of government, such affirmative resistance has broad implications when it comes to federal policymaking and federal-state-local relations. Federalism extends points of resistance downward from federal agencies to states and local government bodies. Ultimately, when it comes to the future of fair housing and the significance of internal resistance to federal backsliding on federal obligations associated with agency oversight of federal-state and federal- local programs, there are reasons for both pessimism and cautious optimism. Uncooperative federalism creates space for state and local governments to defend policies, to insist that federal agencies live up to their statutory obligations, and to resist federal backsliding
FSU Law Focus - 10/21/2022
Get PDFFrom the Dean: Stoops Law Center of Law & Business executive education courses; Fall 2022 Distinguished Environmental Lecture; Alum Profile: Richard D. Rivera (’13); Student Profile: 3L Caroline Dikehttps://ir.law.fsu.edu/fsu-law-focus/1020/thumbnail.jp
FSU Law Focus - 04/01/2022
Get PDFFrom the Dean: New real estate program, Transforming Florida: Transit-Oriented Development; College of Law Seminole 100 Honorees; Alum Profile: Robert C. Volpe (\u2715); Student Profile: 3L Judelande Jeunehttps://ir.law.fsu.edu/fsu-law-focus/1227/thumbnail.jp
FSU Law Focus - 05/13/2022
Get PDFFrom the Dean: Faculty members receive university teaching awards; Peraza Receives Pro Bono Award; Alum Profile: Douglas Helling (\u2706), Student Profile: 2022 Grad Victoria Scottihttps://ir.law.fsu.edu/fsu-law-focus/1270/thumbnail.jp
The International Criminal Court Must Prioritize the Palestinian Child Prisoners
Get PDFIn the Occupied Palestinian Territories, thousands of Palestinian children have been the subject of numerous human rights abuses through their subjugation to Israeli prisons and military court system. The International Criminal Court (ICC) must hear and prioritize the cases involving Israeli crimes against these Palestinian children. A review of the history of Palestine, an analysis of applicable international law, and a description of the role of the ICC will illustrate the necessity of the ICC\u27s intervention on the crimes committed against the Palestinian children
In the Danger Zone: The Call for Reshoring Pharmaceutical Manufacturing to Reduce the Vulnerability of the United States\u27 Supply Chains to War Tactics
Get PDFDamned Causation
Get PDFThe inherent mismatch between the questions law asks and the answers statistics provides has led courts to create arbitrary rules for statistical evidence. Adherence to these rules undermines deterrence goals and runs the risk of depriving recovery for whole categories of injuries. In response, some courts adopt new theories of recovery, relying on the loss of chance doctrine to provide some relief to injured plaintiffs. These solutions, however, only serve to exacerbate the fundamental misunderstanding of probabilities. While these doctrines largely operate within the context of medical malpractice, the increased ability to capture more statistical data may prompt courts to acknowledge the probabilistic nature of causation in other contexts. It is important to ensure that courts correctly approach this information. This Article presents a simple framework for thinking about probabilistic harm. The framework identifies the attributable risk rate as the correct metric for assessing whether a plaintiff belongs to the avoidable class people who would not have experienced harm in the absence of negligence or the inevitable class people who would have experienced harm even in the absence of negligence. The Article then proposes a practical two-step ( personalize/operationalize ) process for using attributable risk rates to assess causation. It provides a concrete example of how this process compares to other legal rules. It also demonstrates that this process is compatible with current legal requirements, harmonizes the treatment of causation in probabilistic and non-probabilistic contexts, and ensures that statistical evidence is taken seriously
Vaccine Apartheid: A Human Rights Analysis of COVID-19 Vaccine Inequity
Get PDFIn this paper, we analyse the inequity in current global vaccine distribution through the lens of international human rights law. First, we introduce the currently available COVID-19 vaccines, before discussing causes and consequences of vaccine inequity, as well as efforts to expand global vaccine access. We then turn to explain the relevant obligations of states regarding human rights to health, life, and equitable access to the benefits of technology. In light of those obligations, we assess the human rights compatibility of vaccine procurement and vaccine aid. After a discussion of the possible human rights responsibilities of the pharmaceutical companies that own the vaccines, we focus on whether a proposed waiver of global intellectual property rights in respect of COVID-19 vaccines is demanded under international human rights law. We conclude with a critique of failures in the international legal system, which may have rendered vaccine inequity inevitable