The Georgetown Law Journal

Latest print issue: Vol. 106 Issue 1

Humans and the effects of their activities now substantially influence the entire planet, including its oceans, climate, atmosphere, and lands. Human influence has become so large that earth scientists have debated whether to identify a new geologic time period: the Anthropocene. The Anthropocene will surely have substantial effects on society and economies, and law will be no exception. The Anthropocene is the product of the aggregation of billions of individual human actions, the impact of which is exponentially increasing because of growing technological advances and population. Humans will inevitably respond to the Anthropocene, if only to adapt to the significant changes in oceans, climate, biodiversity, and other critical functions upon which society depends. These responses will ineluctably lead to greater government involvement in a wide range of human activities and the constant updating of government laws and regulations to respond to new challenges. The result will put pressure on a wide range of legal doctrines in public and private law, including torts, property, constitutional, administrative, and criminal law. These changes will parallel similar revolutionary legal changes associated with industrialization and the development of a national economy in the United States in the nineteenth and twentieth centuries. Just as with those legal changes, the legal changes of the Anthropocene will put pressure on normative commitments at the heart of American law, including the classical liberal paradigm that government intrusion into individual action should be the exception, rather than the norm. Managing the impacts of these legal changes will be a key challenge for the legal system in the next century.

International flows of personal information are more significant than ever, but differences in transatlantic data privacy law imperil this data trade. The resulting policy debate has led the EU to set strict limits on transfers of personal data to any non-EU country—including the United States—that lacks sufficient privacy protections. Bridging the transatlantic data divide is therefore a matter of the greatest significance. In exploring this issue, this Article analyzes the respective legal identities constructed around data privacy in the EU and the United States. It identifies profound differences in the two systems’ images of the individual as bearer of legal interests. The EU has created a privacy culture around “rights talk” that protects its “data subjects.” In the EU, moreover, rights talk forms a critical part of the postwar European project of creating the identity of a European citizen. In the United States, in contrast, the focus is on a “marketplace discourse” about personal information and the safeguarding of “privacy consumers.” In the United States, data privacy law focuses on protecting consumers in a data marketplace.

In U.S. law, the doctrines of forum non conveniens and judgment recognition and enforcement serve important roles in the transnational litigation context. Forum non conveniens is a judge-made doctrine concerned with the efficient allocation of judicial resources when a case is susceptible to adjudication in multiple jurisdictions. Courts deciding whether to dismiss a case for forum non conveniens consider the interests of the parties and forum states in the litigation, as well as the relative procedural and substantive adequacy of the forums with jurisdiction over the matter. The determination of whether to recognize and enforce a judgment rendered by a foreign court, by contrast, concerns whether a particular, completed foreign proceeding was conducted in a way that accords with U.S. public policy and that treats all parties fairly. Both doctrines appear grounded in concerns of procedural efficiency, fairness to the parties, and international comity. However, the disparities between the standards U.S. courts apply at these two stages can lead to results that appear to serve none of these goals. Cases are dragged out for many years, courts appear to favor the interests of American defendants over those of foreign plaintiffs, and this actual or perceived favoritism engenders resentment and even retaliation from foreign governments. The saga of the transnational Dibromochloropropane (DBCP) litigation, particularly its Nicaraguan component, illustrates the potentially deleterious consequences of this gap in standards.

Until recently, the “Page One” meeting was a newspaper ritual. Top brass gathered around a conference room table to decide what the news of the day was. Editors of political, metro, features, and sports sections pitched stories to the editor in chief, managing editor, and each other. They questioned and debated. Skepticism abounded. When it was all over, section editors had marching orders for their reporters, and everyone knew what would appear on page A1. When it was done right, the editors around the table had made decisions based on their collective news sense—the product of their journalistic training, experience, and professional ethics. The stories that survived the gauntlet had been deemed newsworthy.

The Fourth Amendment’s automobile exception generally allows vehicles to be searched without a warrant. This lessened degree of protection is based partially on the need to afford law enforcement officials discretion when a suspect, evidence, or contraband is found in an automobile. It is also based on the diminished expectation of privacy in vehicles, due to their pervasive regulation and use of the public roadways. Although an autonomous vehicle would seem to undermine the mobility rationale for the automobile exception, it is the information such vehicles collect about their drivers that merits a departure from established Fourth Amendment doctrine to ensure that basic privacy protections remain in full force. This Note argues that although the mobility analysis of the automobile exception does not compel a new approach to Fourth Amendment analysis for autonomous vehicles, the information these vehicles collect represents such a significant privacy interest that law enforcement officials should be required to obtain a warrant before accessing vehicle data. This result is supported by the Supreme Court’s analysis in Riley v. California and United States v. Jones.

Web-exclusive content: GLJ Online Vol. 106

In popular and political culture, many observers credit nearly twenty-five years of declining crime rates to the “New Policing.” Breaking with a past tradition of “reactive policing,” the New Policing emphasizes advanced statistical metrics, new forms of organizational accountability, and aggressive tactical enforcement of minor crimes. The existing research and scholarship on these developments have focused mostly on the nation’s major cities, where concentrated populations and elevated crime rates provide pressurized laboratories for police experimentation, often in the spotlight of political scrutiny. An additional line of scholarship has looked more closely at how the tactics of the New Policing have become institutionalized in police–citizen interactions in the everyday lives of residents of poorer, often minority, and higher-crime areas of the nation’s cities.

Supreme Court confirmation hearings are vapid. Supreme Court confirmation hearings are pointless. Supreme Court confirmation hearings are harmful to a citizenry already cynical about government. Sentiments like these have been around for decades and are bound to resurface each time a new nomination is made. This essay, however, takes a different view. It argues that Supreme Court confirmation hearings are a valuable form of cultural expression, one that provides a unique record of, as the theater critic Martin Esslin might say, a nation thinking about itself in public.

A gun wielded by a marching white supremacist leads a complicated double life, for it is at once deadly and expressive. Displayed in the context of the August 2017 marches in Charlottesville, the protesters’ firearms expressed something—something too diffuse to call a proposition but still recognizable as a cluster of themes and ideologies: anger, suspicion of the government, white supremacy, a fear of being replaced, admiration of the Confederacy, “sic semper tyrannis,” nativism, and other associated emotions and ideas. In Charlottesville, these and other strands of meaning came together in the glint of muzzles in the mid-morning sun.

More than any other promised police reform, the public would benefit from the government adopting an “open data” philosophy towards police accountability data. “Open data” in the context of public policy is the philosophy that when the government “provides people access to its process, decision-making, and data,” a “more effective ecosystem for innovation and development” results. Body cameras have been introduced across the country as the manifestation of transparent policing meant to restore the public’s trust in police following multiple murders of unarmed young men and women of color nationwide. However, as Professor Simonson writes in her essay, “Beyond the Body Camera: Defending a Robust Right to Record the Police,” the body camera footage is created, stored, organized, and distributed by governmental agencies that continue controlling the narrative about police conduct. In this article, I elaborate on Professor Simonson’s observation about governmental control over the narrative. I also discuss diverging approaches to public access to body camera footage from Seattle, which has embraced an “open data” model, to Minnesota, where restrictions on public access to police data are being introduced for the first time through legislative regulations. On a more optimistic note, I will also discuss non-governmental efforts to subvert that control by cataloging and reporting on police accountability data. The seriousness and wealth of the information collected and shared through these efforts stands in sharp contrast to the dearth of police accountability data being disseminated by the government.