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October 29, 2015

The Curious Case of Cell Phone Location Data: Fourth Amendment Doctrine Mashup

In the essay, Professor Bedi discusses a prominent issue in Fourth Amendment jurisprudence: whether an individual's cell phone location data is constitutionally protected. The emergence of this data and law enforcement's attempts to utilize it have raised new questions about the reach of the third-party and public disclosure doctrines, which have traditionally rendered the Fourth Amendment inapplicable to seemingly similar data in certain circumstances. Bedi explores these new questions, providing a helpful overview of the different manifestations of this data and a critical survey of lower courts' varying approaches to law enforcement's attempts at securing it. Ultimately, Bedi argues for a new way of understanding the third-party and public disclosure doctrines, arguing that, in the cell phone location data context, attention is best placed on the type of data and the context in which law enforcement acts. 

October 20, 2015

Prosecuting Online Threats After Elonis

In the essay, Mr. Pierce discusses what, exactly, the government must prove before it can, consistent with the First Amendment, prosecute someone who posts threatening messages on Facebook. Last Term, a divided Court wrestled with this issue in Elonis v. United States, reversing the defendant's conviction but leaving an important question unanswered: does the government need to prove that a speaker was reckless with his words or, alternatively, that he specifically intended them to be interpreted as threats? The essay suggests that instead of deciding which standard is best for all online threats, lower courts should adopt libel law’s distinction between public and private targets, and similarly apply a heightened mens rea standard only when the speech at issue targets public figures. A Facebook post containing violent language about one’s elected representative implicates free speech values in a way that an otherwise similarly threatening post targeting one’s ex-wife (like Elonis's) does not.

October 13, 2015

Conversation with Cathy Hwang and Benjamin P. Edwards on The Value of Uncertainty

In this podcast, Cathy Hwang and Professor Benjamin P. Edwards discuss their essay The Value of Uncertainty with NULR Online editor William Gohl.

October 5, 2015

Who Are You Calling Irrational?

In this book review, Kovvali discusses and critiques certain philosophical underpinnings of "nudges." Nudges are small interventions that change the context in which decisions are made, thus encouraging individuals to make specific choices. Using an analogy to voting paradoxes, Kovvali shows that nudges exploit a type of irrationality that results when citizens attempt to reconcile inconsistent objectives, and concludes that while insights about irrationality are useful when government officials ask how to design an intervention, they often do not provide a convincing justification for why an intervention is needed.