Business is booming for criminal justice monitoring technology: these days “ankle bracelet” refers as often to an electronic monitor as to jewelry. Indeed, the explosive growth of electronic monitoring (“EM”) for criminal justice purposes—a phenomenon which this Article terms “mass monitoring”—is among the most overlooked features of the otherwise well-known phenomenon of mass incarceration.
This Article addresses the fundamental question of whether EM is punishment. It finds that the origins and history of EM as a progressive alternative to incarceration—a punitive sanction—support characterization of EM as punitive, and that EM comports with the goals of dominant punishment theories. Yet new uses of EM have complicated this narrative. The Article draws attention to the expansion of EM both as a substitute for incarceration and as an added sanction, highlighting the analytic importance of what it terms the “substitution/addition distinction.” The Article argues that, as a punitive sanction, EM can be justified when used as a substitute for incarceration, but that its use as an added sanction may result in excessive punishment and raises significant constitutional and policy concerns.
As adversary lawyers, prosecutors seek to convict defendants. But as government officials who take an oath of office, prosecutors must interpret and apply the Constitution in good faith. These two roles are at odds. The first pushes prosecutors to argue for narrow readings of defendants’ constitutional rights, while the second pushes prosecutors to enforce the Constitution evenhandedly. The crucial question is: when should prosecutors be adversary advocates, and when should they be quasi-judicial implementers of constitutional protections? This Article argues that prosecutors should adopt the latter role in situations where the adversary system fails to fully protect constitutional rights. This happens when judges are unable to effectively control prosecutors’ actions (for example, with regard to the duty to reveal exculpatory evidence), and also when judges underenforce constitutional rights out of concern for the separation of powers or the limitations of judicial doctrine (for example, with regard to charging decisions and plea bargains). In such situations, prosecutors should preserve defendants’ constitutional rights even if judicial doctrine does not require it, and even if doing so lowers the chance of obtaining a conviction.
A girlfriend hacks her boyfriend’s computer and discovers evidence of tax evasion. She contacts a local law enforcement officer who arrives at her house and looks at the files she found. Without a warrant, the officer opens other files in the same folder the girlfriend had searched. The officer notices another folder labeled “xxx.” He opens the folder and discovers child pornography. The officer seizes the computer based on what he found. The boyfriend is indicted for possession of child pornography and tax evasion. Before trial, the boyfriend moves to suppress all evidence obtained pursuant to the officer’s warrantless search of the computer. What evidence should the judge suppress?
The answer turns on the Fourth Amendment’s private-search exception. Under this exception, a government agent may recreate a search conducted by a private individual so long as the agent does not “exceed the scope” of the prior private search. The question under the existing framework is: at what point did the officer exceed the scope of the prior search—if at all? Was it when he viewed files the girlfriend had not viewed, when he opened files in a different folder, or did he stay within the scope of the girlfriend’s search by only searching the computer’s hard drive? This is what I will refer to as the denominator problem, which asks what courts should use as the unit of analysis to measure the scope of a digital search.
There are at least four competing approaches to the denominator problem, discussed in Part II, and the Supreme Court has provided little guidance on how the private-search doctrine applies to digital searches, resulting in a circuit split. Until this issue is resolved, law enforcement has little guidance on when to obtain a warrant following a private search and can unknowingly subject individuals to unreasonable invasions of privacy, which may result in suppression of relevant evidence. One recent example is United States v. Lichtenberger.
On March 18, 2016, and March 22, 2016, a jury awarded Terry Bollea (a.k.a Hulk Hogan) a total of $140 million in compensatory and punitive damages against Gawker Media for posting less than two minutes of a video of Hulk Hogan having sex with his best friend’s wife. The award was based upon a finding that Gawker intentionally had invaded Hulk Hogan’s privacy by posting the video online.
The case has been receiving extensive media coverage because it is a tawdry tale involving a celebrity, betrayal, adultery, sex, and the First Amendment. The story would be better if all of the characters in the story were not, at best, anti-heroes. Hulk Hogan had sex with his best friend’s wife. Hulk Hogan’s sex partner committed adultery. Hulk Hogan’s best friend, the cuckold, allegedly was the person who videotaped the encounter and then leaked it to Gawker. And, after sleeping with his best friend’s wife, Hulk Hogan had the audacity to sue the cuckold for allegedly leaking the sex tape to Gawker, with the cuckold settling that claim by paying Hulk Hogan $5000. The cuckold then asserted his Fifth Amendment right against self-incrimination to avoid testifying in the case against Gawker. On the other side of the story, Gawker, the entity that posted the sex tape online, is a “media gossip” website host and does not look very good attempting to wear the cloak of the First Amendment by claiming that the contents of the Hulk Hogan sex video, as opposed to the simple fact that the tape existed, was newsworthy. Nor did it help Gawker’s image when Gawker’s editor testified that he would only draw the line against posting sex videos if the video included a child under four years old. It is hard to root for any of the parties in the case.
This Article provides that correction. First, it develops an original typology of legislative injury, detailing all the varieties of “injury” that might afflict legislators, legislatures, and other legislative litigants, and illustrating each with examples from past legislative standing cases. Second, it articulates a method for determining which legislative injuries may be asserted by individual legislators, and which require the participation of a full chamber, or both chambers acting bicamerally. Finally, it illustrates this model by applying it to the Court’s recent forays into legislative standing and the pending ACA litigation.
Title VII of the Civil Rights Act of 1964 requires employers to make reasonable accommodations for their employees’ sincerely held religious practices and beliefs as long as the accommodation does not pose an “undue hardship” on the conduct of the employer’s business. But “undue hardship” is a vague term that has led to unclear, inconsistent, unfair, and even discriminatory precedent. This Note proffers a new framework for religious discrimination law through the incorporation of the “essential functions” provision of a similar law, Title I of the Americans with Disabilities Act, in order to strike a fairer balance between the competing rights and interests of employers and employees.
In 2014, the United Nations initiated a plan to end statelessness, the widely deplored condition in which a person does not have a nationality or the rights conferred by citizenship, which aims to fill gaps in national laws that contribute to statelessness. One such gap exists in the United States’ Immigration and Nationality Act—specifically, a gender-based physical-presence requirement that prescribes how American parents can confer citizenship to their children. The Second Circuit, reviewing the physical-presence requirement, held it unconstitutional in Morales-Santana v. Lynch, despite a conflicting ruling from the Ninth Circuit, because the requirement violates the Constitution’s Equal Protection Clause. Having granted certiorari to Morales-Santana, the Supreme Court must take this important opportunity to affirm the Second Circuit to ensure that no American citizen is made stateless by a wrongful interpretation of the Immigration and Nationality Act. This Note explores relevant domestic and international laws and conventions and explains why affirming the Second Circuit in Morales-Santana is consistent with both the United Nations’ efforts to end statelessness and the U.S. Constitution.
Although the plain text of the Fourteenth Amendment states that “[a]ll persons born . . . in the United States and subject to the jurisdiction thereof, are citizens of the United States,” “[t]ens of thousands of Americans who hold U.S. passports are” not legally recognized “as U.S. citizens.” How is this possible? The answer is that these Americans were born in the United States territory of American Samoa rather than anywhere else in the United States.
American Samoa is an “unorganized unincorporated territory” of the United States, located 2,500 miles south-southwest of Honolulu and 1,800 miles north-northeast of New Zealand in the South Pacific. Despite having been a part of the United States for over a century, American Samoa is the only United States territory in which its people are not granted United States citizenship by virtue of birth within the territory. The federal government classifies American Samoans as “non-citizen national[s],” a legal status subordinate to that of full citizenship.
The regulation of firearms is one of the most volatile policy issues in the United States. Virtually every effort to regulate—or deregulate—the accessibility or usage of firearms raises dueling concerns of public safety and individual rights. Federal courts are no exception to the controversy, offering a microcosm of the broader public debate. The Supreme Court’s sharply divided decisions in District of Columbia v. Heller and McDonald v. City of Chicago are illustrative of the point; while Heller established the Second Amendment right to keep and bear arms in the individual context, and McDonald extended the right as fundamental and binding on the states, the decisions did little to fix the scope and magnitude of the newly created right, leaving it open to spirited debate. In the wake of the two decisions, lower courts have been left to grapple with how far and with what rigor to scrutinize state and local laws that may burden the right to keep and bear arms.
People may kill and injure people, but guns appear to be a weapon of choice. In the United States alone, there are over 32,000 firearm-related deaths annually and an additional 78,000 persons are injured as a result of interpersonal firearm violence. While a significant portion of the casualties are attributable to suicides, accidents, law enforcement, or self-defense, an appreciable portion are the product of criminal activity. Although exact numbers are difficult to ascertain, the Department of Justice estimates that each year, approximately 470,000 persons become victims of a crime committed with a firearm. But perhaps the most visible manifestations of gun violence are “mass shooting” incidents, drawing substantial media coverage and public concern. These variables, among others, animate concerns of public safety, giving rise to policy arguments for more stringent regulations of firearms.
The harm principle allows government to limit liberties as necessary to prevent harm. Does the freedom of speech present an exception to the harm principle? Most American scholars say yes. It is common practice to proclaim proudly that the U.S. Constitution protects speech even when it causes harm. But two tenets of the author of the harm principle himself suggest that, today, this answer may be too glib. For John Stuart Mill, the enhanced protection of speech is only a means to protect thought, and moreover, opinions lose their immunity if they cross over from thought into action. Together, these two points invite us to consider the possibility that the special protection we have come to afford, even to a newly broadened range of speech that goes well beyond thought, may be misplaced. There are cases, I will argue, in which we should be slow to assume that society is necessarily without power to protect itself from harm that expression may cause.