NYU Law Professor Samuel Estreicher comments on a recent decision by the Supreme Court of Illinois holding that the Illinois Biometric Information Privacy Act protections do not apply to union-represented workers because claims under the Privacy Act are preempted by Section 301 of the federal Labor Management Relations Act. Professor Estreicher argues that the court’s decision is in tension with the U.S. Supreme Court’s 1988 decision in Lingle v. Norge Div., Magic Chef, Inc., and its progeny, which provide that adjudication of an employer’s under the CBA does not generally trigger Section 301 preemption.
Stanford Law visiting professor Joanna L. Grossman and professor Lawrence M. Friedman explain why the Comstock Act, an anti-vice law passed 150 years ago but never removed from the books, has recently become noticed again with Republicans’ renewed efforts to ban abortion nationwide. Professors Grossman and Friedman describe the law and the man behind the law, Anthony Comstock, and they argue that the so-called ghost law should remain dead.
Amherst professor Austin Sarat and former federal prosecutor Dennis Aftergut argue that Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization, together with the language in Justice Clarence Thomas’s concurring opinion, put the country on a path toward the totalitarian state that one-time Supreme Court nominee Robert Bork had envisioned. Professor Sarat and Mr. Aftergut point out that Bork’s America would have a constitution that does not evolve or change to meet new circumstances and that affords no protection of citizens’ privacy from government intrusion
In this second of a series of columns on Dobbs v. Jackson Women’s Health Org., attorney Jon May argues that the decision threatens certain fundamental rights conferred by the Fourth Amendment. Mr. May predicts that those rights will not withstand the onslaught of law enforcement conduct in entering and searching our homes without a warrant, invading our private thoughts and associations found on our smart phones and computers, or stopping and searching us on the streets without probable cause or reasonable suspicion.
In light of Justice Samuel Alito’s leaked draft in Dobbs v. Jackson Women’s Health Org., which would overrule Roe v. Wade and its progeny, UChicago Law professor emeritus Albert W. Alschuler and Harvard Law professor emeritus Laurence H. Tribe ask six questions of the apparent five-Justice majority. Professors Alschuler and Tribe point out some of the inconsistencies and illogic of the opinion and call on the Justices to account for these issues.
Cornell Law professor Sherry F. Colb explores a suggestion by some pro-choice advocates that a “religious abortion” might serve as a workaround to the apparently imminent demise of the constitutional right to abortion. Professor Colb explains why that workaround is unlikely to prevail: the current Court discounts the Establishment Clause, and its ostensible embrace of the Free Exercise Clause is actually friendliness only to conservative Christianity (and to Judaism and Islam where the traditions happen to be the same).
Cornell Law professor Sherry F. Colb explores the relationship between the abortion right and the right to physician assistance in dying, neither of which she predicts will enjoy constitutional protection under the religious extremist majority that now rules the Supreme Court. Professor Colb points out that religious extremists oppose both rights based on a view that God alone decides when we live and die.
Illinois Law dean Vikram David Amar and professor Jason Mazzone analyze some of the issues presented by a new Texas anti-abortion statute that is to be enforced entirely by private plaintiffs. Dean Amar and Professor Mazzone explore the unusual characteristics of the law and describe some approaches opponents might take—and indeed Whole Woman’s Health (WWH) has already filed a lawsuit in federal court that seems to follow an approach the authors describe.
Cornell law professor Sherry F. Colb analyzes an unusual comment by former Arkansas Governor Mike Huckabee that a government restriction on the size of people’s Thanksgiving gathering would violate the Fourth Amendment’s guarantee against unreasonable searches and seizures. Colb describes a similar statement (in a different context) by conservative Supreme Court nominee Robert H. Bork during his (unsuccessful) confirmation hearings in 1987 and observes from that pattern a possibility that even as unenumerated rights are eroded, the Court might be creative in identifying a source of privacy rights elsewhere in the Constitution.
Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, explains why the impact of Justice Anthony Kennedy’s retirement from the US Supreme Court touches far more than just the issue of abortion—but the very notion of a constitutional right to privacy. Hamilton argues that if the Federalist Society has its way, the core reasoning of Roe v. Wade will be eviscerated and the constitutional right to privacy—from which the right to access to contraception and the right to engage in consensual sexual relations in private—will be eroded.
Cornell law professor Sherry F. Colb comments on the US Supreme Court’s recent decision in Carpenter v. United States, in which the Court held that the government must have a search warrant to obtain an individual’s cell-site location information (CSLI). Colb describes the Court’s holding and the dissenting opinions, and considers the Court’s minority (but growing) view that only property, and not privacy, is protected under the US Constitution—particularly when privacy rights encompass the right of a woman to obtain an abortion and the right of same-sex couples to engage in private, consensual sexual acts.
University of Washington law professor Anita Ramasastry comments on Facebook’s recently announced messenger app for kids. Ramasastry describes the key features of Facebook’s new program and explores the privacy and safety concerns that arise with this business model. She calls upon policymakers or advocacy groups to weigh in, as well, anticipating that this will not be the only business model aimed at kids in this manner.
Cornell University law professor Michael C. Dorf comments on a recent decision by the Supreme Court of India in which that court ruled that the Constitution of India protects a right of privacy. Dorf explains the significance of the decision not only for the largest democracy in the world, but also for people in other constitutional democracies, including the United States.
Joanna L. Grossman, SMU Dedman School of Law professor, and Lawrence M. Friedman, a Stanford Law professor, comment on the decreased privacy of the modern world, as recently illustrated by the very public identification of some of the alt-right demonstrators in Charlottesville, Virginia, from photos and videos of the rally. Grossman and Friedman point out that technology is making anonymity a thing of the past and that only affirmative legislative changes, such as recognition of a “right to be forgotten,” can alter that course.
Cornell University law professor Sherry Colb comments on a recent decision by the Court of Appeals of Indiana, holding that police violated their suspect’s Fourth Amendment rights by acquiring, without a warrant, the suspect’s cell site information from his cell phone provider. Colb explains the Indiana court’s reasoning and discusses the evolving law regarding people’s privacy expectations in information their cell phones store and transmit.
Hofstra University law professor Joanna Grossman comments on a recent lawsuit by Charlie Sheen’s ex-fiancée seeking damages for Sheen’s failure to disclose his HIV status. Grossman discusses the nature of the complaint filed and describes how civil and criminal laws must balance the right of individuals to sexual privacy against interests such as public health.
Cornell University law professor Sherry F. Colb comments on a finding by the U.S. Department of Education Office for Civil Rights that an Illinois school district had violated anti-discrimination laws by barring a transgender girl from showering and changing in the girls’ locker room without restrictions. Colb argues that perhaps the best solution for everyone may be to have individual showers for everyone, rather than singling out a single person or disregarding the privacy concerns of everyone.
Cornell University law professor Sherry Colb analyzes a recent decision by the U.S. Court of Appeals for the Sixth Circuit holding that when a person with a cellphone inadvertently calls a third party, thereby exposing personal communications, the caller retains no reasonable expectation of privacy in the matters disclosed for purposes of the federal Wiretap Act.
University of Washington law professor Anita Ramasastry discusses a new type of mobile app that maps illness in much the same way other apps map weather patterns and warns of the privacy implications these apps pose.
University of Washington law professor Anita Ramasastry discusses a proposal tentatively approved by the U.S. Department of Transportation that would allow airlines to collect consumers’ personal data for the purpose of personalizing fare quotes. Ramasastry cautions that the proposal has significant privacy and discrimination risks and that we need more information, more transparency, and better safeguards before proceeding with it.