National Security Ontology, Part I: Marsha Berzon and the State Secrets Privilege

(Source)   The first several years of the Trump Administration have proven to be a renaissance for national security law.  Aside from the obvious headline grabbers—the Travel Ban, the emergency declaration, and, of course, the Mueller Investigation—there have been several important lower federal court decisions.  These decisions are significant in that they are some of the first to deal with the ontology of different national security rules and doctrines.  One of my old professors once blogged that “[o]ntology is a fancy word for the nature of a thing.”  By that he meant that ontology, at least in the legal context, helps explain what the source of a legal rule is—whether it is a constitutional rule, a rule of federal common law, or is derived from a statute—to better understand its characteristics.  The ontology of different legal rules is especially important where those rules impact the separation of powers.  That’s because the source of a legal rule establishes the role of each branch.  For example, scholars have focused on the ontology of the Miranda warnings and the substantive canons of construction (rules like the rule of lenity that guide judges in interpreting statutes according to some policy).  If Miranda is a [read more]

Supreme Court to Hear Landmark LGBTQ Cases

On Monday April 22, 2019, the Supreme Court of the United States has agreed to hear three cases which seek rulings on whether sexual orientation, transgender status, and transitioning status are protected under Title VII of the Civil Rights Act after years of courts and government agencies taking conflicting positions on this landmark issue. The Supreme Court will likely issue decisions on these hot button cases in 2020 at the beginning of the next presidential election race. Title VII makes it unlawful for an employer to discriminate against any individual “because of” the individual’s sex. While it is understood that the phrase “because of sex” includes gender stereotyping, the law remains in flux as to whether discrimination “because of sex” includes discrimination based on sexual orientation, transgender status, and transitioning status. Numerous courts and federal government agencies have taken opposing stances on this issue. For example, the Department of Justice (“DOJ”) has filed an amicus brief arguing that discrimination based on sexual orientation is not encompassed as discrimination “because of sex” under Title VII. The DOJ’s brief directly conflicts with the Equal Employment Opportunity Commission’s (“EEOC”) stance, as articulated in an amicus brief, which contends that sexual orientation falls squarely [read more]

Federalizing Privacy Rights: How Tech Giants Went From Protesting Privacy Laws to Supporting Them

In an impassioned speech in Brussels this October, Tim Cook, the CEO of Apple, threw his weight behind a federal privacy law, denouncing the data collection practices engaged in by his fellow technological giants such as Google and Facebook. While it is not new for tech companies to push for stronger privacy laws, the renewed impetus for the movement comes from the European Union’s General Data Protection Regulation (GDPR), which went into effect on May 25, 2018, and California’s Consumer Privacy Act, which will go into effect on January 1, 2020. On the heels of California’s legislation, other states such as Georgia have also introduced similar bills. This patchwork of legislations across states with different levels of obligations has pushed the tech industries to petition Congress to enact a federal legislation. Earlier in November, Senator Ron Wyden (D–OR) introduced a federal privacy bill, but many news outlets report it as unlikely to be passed into law. While the tech companies’ interest may stem more from the desire to avoid compliance with 50 different laws on privacy, this post analyzes the public policy implications of a federal legislation on privacy for the complicated digital economy. Present federal protections for privacy rights: The current approach at the federal level in regulating [read more]

New Technology and Evidence: Issues with Admitting Social Media Evidence In Court

The skepticism as to the reliability of information acquired from social media as evidence in a motion for summary judgment or at trial appears to be often misplaced. Although social media evidence does pose problems related to identifying the true author of a post, the accessibility to direct information regarding an individual’s personal thoughts and ideas that social media provides is extremely valuable. [read more]

Is Regulation Cryptocurrencies’ Kryptonite?

Cryptocurrencies undoubtedly hold a lot of speculation in terms of value and regulation alike. Not only does the new form of currency give promise of expanding growth but the high volatility and criminal concerns lead politicians to seek possible legislative matters to combat these ills and fully effectuate the benefits that digital currency provides. Therefore, regulation may demonstrate to be a complement to the propagation of the technology rather than its kryptonite. [read more]

Plowing Past Preponderance

Clearly, a sexual assault allegation demands more sensitivity than normal considerations about a candidate’s qualifications. Accordingly, the decision makers (i.e. the Senate and the President) should publicly state that a decision to not appoint the candidate is only based on the uncertainty of the situation; it is not a guilty verdict. But being sensitive to the candidate surely does not require making him a Supreme Court justice. [read more]
1 2 3 11