Harvard Journal of Law & Public Policy

Tri-annual journal featuring scholarly review of law and issues of importance to students, educators, and practioners.

Articles from Vol. 36, No. 2, Spring

Balancing the Separation of Powers and Right-Remedy Principles in Minneci V. Pollard, 132 S. Ct. 617 (2012)
In the 1972 case Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court held that the courts had power to create damage remedies for violations of constitutional rights by those acting pursuant to federal law. (1) The...
Cleaning Up "The Mess": The D.C. Circuit Court of Appeals and the Burden of Proof in the Guantanamo Habeas Cases
INTRODUCTION Since Boumediene v. Bush, (1) the United States District Court and Court of Appeals for the District of Columbia Circuit have been thrust into an extraordinary lawmaking exercise with broad national security implications as they adjudicate...
Compulsory Process in Cyberspace: Rethinking Privacy in the Social Networking Age
INTRODUCTION I. CRIMINAL INVESTIGATIONS AND CURRENT PRIVACY LAW: ARE THE PROTECTIONS OUTDATED? II. CIVIL LAWSUITS AND THE BURGEONING THREAT TO ANONYMOUS ONLINE SPEECH A. The Dendrite/Cahill Construct B. Cyber SLAPPs: Squelching Speech ...
Ending the Zero-Sum Game: How to Increase the Productivity of the Fourth Amendment
B. Surveillance Techniques Which Are as Effective but Less Intrusive Another way to increase productivity is to develop surveillance techniques that provide the same level of output but cost less in terms of privacy costs. In general, law enforcement...
Foreword: Accounting for Technological Change
Changing technology presents a recurring problem for lawmakers. Laws are enacted with a background understanding of the facts. When those facts change, the effect of the old legal rules can change along with them. A law created for one world may have...
Neuroscience, Mental Privacy, and the Law
III. MIND READING WITH NEUROIMAGING: WHAT WE CAN (AND CANNOT) DO Having established in Part II a working definition of neuroimaging mind reading, the Article now briefly discusses several recent legal applications of such technology. Part III reviews:...
Observations from Above: Unmanned Aircraft Systems and Privacy
III. GOVERNMENT UNMANNED AIRCRAFT AND THE FOURTH AMENDMENT The Fourth Amendment is central to the privacy issues with respect to government UAS operation. Although the Supreme Court has never explicitly considered the question of UAS privacy, there...
Preface
In a networked world where each of us is constantly tethered to--and more often than not tracked by--the technology we interact with on a daily basis, concerns regarding privacy, security, and human dignity rise to the forefront of the legal challenges...
Public Choice Theory and Overcriminalization
III. THE LIMITED POLITICAL REMEDIES AVAILABLE TO STEM AND REDUCE OVERCRIMINALIZATION A. Uphill Battles In an ideal world, there would be a way to dissuade or prevent legislators from endlessly passing additional unnecessary criminal laws. For...
Seminole Rock and the Separation of Powers
Under the longstanding precedent of Bowles v. Seminole Rock & Sand Co., (1) a court will defer to an agency's interpretation of its own regulation unless that interpretation "is plainly erroneous or inconsistent with the regulation." (2) The Supreme...
Should We Make Crime Impossible?
INTRODUCTION I. DEFINING IMPOSSIBILITY STRUCTURES II. A FRAMEWORK FOR ASSESSING IMPOSSIBILITY STRUCTURES A. Benefits B. Costs 1. Interests of the Potential Perpetrator a. Autonomy b. Privacy...
The Pursuit of Privacy in a World Where Information Control Is Failing
INTRODUCTION I. NORMATIVE CONSIDERATIONS: THE CHALLENGE OF DEFINING PRIVACY A. Privacy and "the Pursuit of Happiness". B. On the Problem of "Creepiness" as the Standard of Privacy Harm C. Increasing Tensions Between...
Updating the Law of Information Privacy: The New Framework of the European Union
I. ORIGINS OF EU PRIVACY LAW A. Integration of the European Union Economies B. Establishment of Privacy as a Fundamental Right C. Modern EU Privacy Instruments 1. The EU Data Protection Directive 2. The...